CH ATCHUTAMBA Vs. M VENKATAMMA

JUDGEMENT

(1.) The short question that arises in this C. M. P. in l. P. A. S. R. No. 27755 of 1977 is whether the petitioner is entitled to prefer this appeal under Clause 15 of the Letters patent by reason of the fact that at the time of the disposal of the Second appeal (Second Appeal No. 821 of 1972) on 16th December 1974 she was granted leave to appeal, as the decision went against her.

(2.) The relevent facts leading to the filing of the present application are these. Second Appeal No. 821 of the 1972 preferred by the respondent arose out of O. S. No. 176 of 1964, a suit filed by the respondent in the Court of the principle District Munsif, Kakinada. She asked for a declaration that the petitioner herein (first defendant) forfeited her rights in the properties of her husband given to her under a will dated 30th January, 1949 executed by her husband on account of her re-marriage on 3rd February, 1963 and that the respondent herein (Plantiff) acquired absolute rights in the plaint schedule properties. The trial Court as also the first appellate Court dismissed her suit. That led to the respondent (Plaintiff) filing the Second Appeal. It was allowed by a single Judge of this Court on 16th December, 1974 and the suit was accordingly decreed. While so decreeing the suit, the learned single Judge granted leave on that day. But, it so happened for a variety of reasons, the petitioner did not prefer an appeal within the time prescribed and get it registered within thirty days as provided in rule 51 (1) of the Appellate Side rules. The present application is filed after a delay of 867 days seeking condonation of the delay in preferring the Letters Patent Appeal against the decree in S. A. No. 821 of 1972, dated 16th December, 1974. A preliminary objection has been raised by Mr. M. Suryanarayana Murthy, on the ground that the application is not maintainable in view of section 100-A read with section 97 (2) (n) of the Amendment act of 1976.

(3.) Section 100-A puts an embargo on further appeal against a decree passed by a single Judge in a Second Appeal. Section 100-A in these terms:"notwithstanding anything contained in any Letters Patent for any High court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal. "