LAXMI BAI Vs. NAGA RAM KHILAWANDAS

JUDGEMENT

(1.) A common order is being passed in this second Appeal No. 402 of 1988 (Ram Sahay v. Rambahoran) and Second Appeal No. 441 of 1988 (Maharani and Ors. v. Phoolrani), as a common reference has been made by the learned Single Judge, Hon. S. K. Seth, J., to resolve the conflict which has arisen due to his own dissenting opinion and the one expressed in Mehernosh Merfitie v. Paras Kumar Gangwal, C. Re. No. 63 of 80 decided on 18 -6 -1986, on one side and the opinion of Hon. Dr. T. N. Singh, J., at Gwalior Bench of this Court in a decision reported in Anwar v. Wahidan, AIR 1987 MP 140, on the other.

(2.) IN regular appeals under Section 96 of the Civil Procedure Code filed by the appellants in the lower appellate Court, applications under Section 5 of the Limitation Act for extension of time in filing the appeals were filed. The first appellate Court rejected the applications for extensionof time and consequently dismissed the appeals as barred by time. Against the orders dismissing the appeals, the appellants presented the present second appeals under Section 100 of the Civil Procedure Code.

(3.) THE learned Single Judge, Hon. Dr. T.N. Singh. J., at Gwalior Bench in the decision of Anwar v. Wahidan (supra) took a view that an appeal or revision under Section 115 of the Civil Procedure Code filed against such an order can be allowed to be converted into a writ petition under Article 227 of the Constitution and can also be heard and disposed of by a Single Judge. The learned Single Judge, Hon. Dr. T. N. Singh, J., took a note of the decision of the Supreme Court in the case of Vishesh Kumar v. Shanti Prasad. AIR 1980 SC 892: but distinguished the same. In the order of reference made in these cases, Hon. S.K. Seth, J., has expressed a dissenting opinion. His view is that conversion of memo of revision of appeal into a writ petition is not permissible in view of the clear pronouncement of the Supreme Court in Vishesh Kumar (supra) and, in any case, the High Court Rules, framed for regulating the procedure for a writ petition under Article 227 of the Constitution of India, do not permit a Single Judge to decide a writ petition under Article 227 of the Constitution, even if entertained by him after conversion of memo of appeal or revision into a writ petition.