BHAGWATI DEVI Vs. ANGOORI DEVI

JUDGEMENT

(1.) The present appeal from order has been filed against the judgment and order dated 5.10.1999, by which the application for restoration as well as the application under Section 5 of the Limitation Act has been rejected.

(2.) The facts arising out of the present appeal are that a partition Suit No. 50 of 1961 was filed by the Respondent No. 1 Smt. Angoori Devi. The said suit was decreed. The final decree was also prepared on 23.10.1981. The said decree has attained finality and has not been challenged in any Court of law. During pendency of suit, a receiver was appointed, which was discharged on an application made by Smt. Angoori Devi vide order dated 13.3.1984. After disposal of the suit, the Appellant against order dated 13.3.1984 preferred Misc. Appeal No. 293 of 1994 under Order 43, Rule 1(s) Code of Civil Procedure which was dismissed on 17.4.1996 for want of prosecution. Thereafter, a restoration application with an application for condonation of delay was filed, which was rejected by order dated 5.10.1999 by rejecting delay condonation application. This order has been challenged before this Court.

(3.) A preliminary objection was taken on behalf of the Respondents that Misc. Appeal No. 293 c-f 1994, filed before District Judge, under Order 43 Rule 1(s) itself was not maintainable because under said provision only appeal provided is against the order passed under Order 40 Rule 1/4 Code of Civil Procedure The order dated 13.3.1984, challenged in misc. appeal, was not an order under Order 40 Rule 1/4 Code of Civil Procedure It was an order discharging receiver after disposal of the suit, therefore, the appeal before District Judge itself was not maintainable. The appeal filed before District Jude was an appeal under Order 43, Rule 1(s) Code of Civil Procedure., therefore, no further appeal is contemplated against such order. Order 43 is enacted under Section 104 Code of Civil Procedure. Section 104(2) Code of Civil Procedure creates a bar for institution of further appeal against an order passed in an appeal under Order 43 Code of Civil Procedure. because appeals against Order 43 are appeal against order and not against decree, hence the bar under Section 104(2) Code of Civil Procedure will apply. The misc. appeal was filed by incompetent person who was having no power of attorney of the Appellants. The District Judge has also recorded a] finding that even the vakalatnama of the appeal was not on record and, therefore, the appeal itself is incompetent. The Appellant has already died in 1991, hence no restoration application was maintainable. Once appeal against final order i.e. under Order 43 Rule 1(s) Code of Civil Procedure is not permitted and barred by Section 104(2) Code of Civil Procedure, no appeal will lie before this Court against an order rejecting delay condonation application in support of restoration application filed in such appeal.