PREMWATI Vs. MUNNI DEVI ALIAS MINAKSHI

JUDGEMENT

(1.) RAN Vijai Singh, J. The present Second Appeal has been filed by the defendant-appellants against the judgment and order dated 13. 8. 2008 passed by Additional District Judge, Court No. 8, District Mathura arising from Original Suit No. 174 of 2006 in between Munni Devi and another v. Smt. Premwati and an other vide judgment and order dated 13. 8. 2008, appellant's Appeal No. 176 of 2008 has been dismissed as barred by time.

(2.) THE Stamp Reporter has reported that Second Appeal is not maintainable against the said judgment.

(3.) THAT decision was based on the decision of the Supreme Court, reported in AIR 1982 SC 1397. In that decision, another Supreme Court decision was taken into consideration reported in AIR 1973 SC 2307. It was further held : "an appeal registered under Rule 9 of Order 41, CPC is to be disposed of according to law and a dismissal of the appeal for the reason of delay in its presentation after the dismissal of an application for condonation of delay is in substance and effect a confirmation of the decree appealed against. " "i can see no reason for holding that there is a merger of replacement of judgment only in the first two cases and not in the last one. In my opinion, it makes no difference whether the dismissal is submary or otherwise and there is a judgment of the High Court in all the three cases". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . it was further observed : "we are, therefore, of opinion that where a decision is given on the merits by the trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, , like limitation or default in printing, it must be held that such dismissal when it confirms the decision of trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits, whatever may be the ground for dismissal of the appeal. Dismissal of an appeal on the ground of limitation was thus held as amounting to a confirmation of the decree of the trial Court on the merits of the case and the decision of the appellate Court is held to be resjudicata on the question of title raised in the connected appeal. This decision of the Supreme Court would clearly indicate that the decree of the trial Court gets merged in the appellate Court's decree even when the appeal is dismissed on a preliminary ground or as time- barred. "