PARBANNA Vs. VEERSHETTY

JUDGEMENT

(1.) This second appeal was preferred under Section 100 of the Civil Procedure Code against the judgment and decree of the Additional District Judge, Medak at Sangareddy in A.S. 23 of 1995 modifying the judgment and decree of the District Munsif, Zaheerabad delivered in O.S. 225 of 1998.

(2.) This appeal was filed with an application to condone the delay of 285 days in C.M.P. No. 16332 of 2002. This Court allowed the said condone delay petition. Hence, the matter has been coming up today before this Court for admission.

(3.) Sri K. Subramanyam Reddy, learned senior counsel representing the appellants submits that the second appeal was filed with an application to condone the delay in filing this second appeal; that unless and until the application for condonation of delay is condoned, the second appeal cannot be registered and hence in such a case there is no question of following the procedure laid down under Order 41, Rule 9, C.P.C. as amended by the Code of Civil Procedure Amendment Act, 1999, Act 46 of 1999. The learned counsel for the appellants draws my attention to the decision in Jnandasundari v. Madhab Chandra, AIR 1932 Cal 482 and in Manthena Ramanamma v. SPL. Tahsildar, AIR 1976 Andh Pra 81 and also in Paramasivudu v. Subbanna, AIR 1919 Mad 17. The learned counsel for the appellants draws my attention to Order XLI, Rule 1, Order XLI, Rule 3-A, Order 42, Rule 1 and also Section 100 of the Code of Civil Procedure. The learned counsel also contends that in the case of presentation of an appeal, whether it is a second appeal or a first appeal, when presented with an application for condonation of delay, the question of following the procedure laid down under the amended provision of Order XLI, Rule 9, C.P.C. does not arise. The learned counsel for the appellants also draws my attention to the characteristics of a regular first appeal and also the peculiar features of a second appeal. The learned counsel further contends that from a close reading of the relevant provisions of C.P.C. it is clear that under the main provision of Section 100, C.P.C. the right and the power of High Court to entertain a second appeal is no way affected by the introduction of Order XLI, Rule 9, C.P.C. by Act 46 of 1999.