KRISHNAN Vs. PUNIDHAM

JUDGEMENT

(1.) THE above Second Appeal has been filed by the plaintiff in O. S. No. 147 of 1977 on the file of the Court of the Additional Subordinate judge, Pondicherry, who succeeded before the learned trial Judge, but lost partly before the first appellate Judge.

(2.) . The plaintiff has filed the suit O. S. No. 147 of 1977 for a declaration of his title to the suit property and for permanent injunction. The case of the plaintiff before the trial court was that the suit property origi-naliy belonged to one Manicka Mudaliar, who was in possession and enjoyment of the same from 1922, that after his death, his two sons muthusamy and Deivasigamani inherited the property, that in the year 1963, the plaintiff purchased half Khani of land to the west of the suit property, that the plaintiff entered into a sale agreement on 6. 12. 1965 wi th the second defendant and father of defendants 3 and 4 for the purchase of the suit property and that a notarial sale deed was executed on 13. 1. 1966 in pursuance of the sale agreement after receiving the balance of sale consideration remaining unpaid after deducting the advance earlier paid at the time of agreement of sale. The plaintiff claims that he continued to remain in possession and enjoyment of the suit property as the full and absolute owner and made improvements to the suit property. While so, the first defendant appears to have filed the suit in O. S. No. 123 of 1971 for partition and obtained a preliminary decree and when the advocate Commissioner came to deliver the property, the plaintiff obstructed the execution of the preliminary decree and while filing an application and obtaining stay of further proceedings, has filed the present suit for the reliefs mentioned supra.

(3.) I have carefully considered the submissions of the learned counsel appearing on either side. As regards the first contention on behalf of the appellant about the error in entertaining of the appeal in the teeth of the dismissal of the earlier application filed for condonation of delay on the ground of default and its non-restoration, I am of the view that the learned Principal District Judge was right in his conclusion that the appeal was maintainable and the contentions to the contrary raised before this Court cannot be countenanced. As rightly pointed out by the learned counsel for the first respondent, the counsel for the plaintiff himself admitted that the limitation would start running against the first defendant to file an appeal only from the date of notification, of the judgment and it was an indisputed fact that the judgment was not notified to the first respondent. What was really contended before the first appellate Judge was that in the teeth of the dismissal of the application for condonation of delay and the dismissal of the restoration application, there is no scope for filing an appeal once again on the same matter. There is in my view no legal basis for such a claim, at any rate in this case. As against the reliance placed the learned counsel for the appellant on the decision in Vidhyacharan' ; s case, A. I. R. 1964 S. C. 1099, wherein it was held that the Limitation Act and the Civil Procedure Code are to be read together because both the statutes relating to procedure and they are in pari materia and, therefore, to be taken and construed together as one system as explanatory of each other, the learned counsel for the first respondent placed strong reliance upon the decision in surajdeo' ; s case, a. I. R. 1923 Pat. 514 wherein the learned Judges of the Division Bench of the patna High Court, while applying the principles laid down by the Privy Council in the decision in Abdul Majid v. Jawahir Lal, (1914)36 All. 350 held that the order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as adopting or confirming the decision appealed from and that it merely recognised authoritatively that the appellants had not complied with the condition under which the appeal was open to them and therefore, they were in the same position as if they had not appealed at all. It was also held therein that there is nothing in law to prevent the entertainment of a fresh appeal on the dismissal for default of a previously filed appeal provided the later appeal was otherwise in order and was filed within the period of limitation, stipulated therefor.