MD ALI SARDAR Vs. HOSSAIN ALI MONDAL

JUDGEMENT

(1.) THIS matter has been referred to by the learned single Judge of this Court while entertaining a revisional application against an order refusing to condone delay under Section 5 of the Limitation Act. It appears from the recording of the learned Referring Judge the difference of opinion arose in view of the fact that another learned single Judge in case of civil order No.3817 of 2005 (Md. Oli Sheikh, [since deceased] and others v. Tarani Mahato and another) has held that order rejecting an application for condonation of delay under Section 5 of the Limitation Act, 1963 in connection with an appeal is not appealable order. Before the learned Referring Court an order refusing to condone delay in application under Section 5 of the Limitation Act, 1963, was challenged in the Revisional Jurisdiction of this Court. The said application was made in connection with application for setting aside of the ex parte decree passed under Order 9, Rule 13 of the Code of Civil Procedure. Another learned single Judge in case of C.O.808 of 2011 (Sri Gobindo Malik v. Sri Gopal Chandra Ghosh) on identical fact did not endorse the views expressed on the same point of law in case of Md. Oli Sheikh (since deceased) distinguishing the judgment on fact and held that such an order is an appealable and no revision lies. It is appropriate to note that the case of Md. Oli Sheikh and others v. Tarani Mahato and another, was taken to the Hon'ble Apex Court impugning the judgment and order passed thereon by the learned single Judge dated 5th August, 2010, but the Supreme Court has been pleased to reject the SLP with one line order with the words "the Special Leave Petition is dismissed".

(2.) ON the aforesaid factual backdrop the learned Referring Court has referred this matter on the following question-

(3.) ON careful reading of entire decision of the Supreme Court in case of Shyam Sundar Sarma, (AIR 2005 SC 226) we notice that the Supreme Court was dealing with the matter on the following factual background:- The plaintiff got an ex parte decree against the defendants. The first defendant filed a petition for setting aside ex parte decree under Order IX, Rule 13 of the Code accompanied by an application for condonation' of delay under Section 5 of the Limitation Act in filing that petition, and subsequently he also filed in appeal against the ex parte 'decree itself again with an application for condonation of delay in filing that appeal. The application for condonation of delay in filing the appeal as well as the appeal itself were dismissed for default. Thus the petition for setting aside the ex parte decree under Order 9, Rule 13 was filed first, followed by appeal keeping the said application for setting aside of the ex parte decree pending. But before the petition under Order IX. Rule 13 of the Code could be disposed of, the appeal had been dismissed for default as stated above. ON the dismissal of the appeal as above the earlier application for setting aside the ex parte decree was pressed for hearing contending that no appeal against the decree has been pending. Actually the appellant/defendant wanted to get rid of the mischief of the explanation mentioned in Order IX, Rule 13 of the Code of Civil Procedure, as there has been no appeal because dismissal of the appeal as above ought to be treated to have been withdrawn. This argument right from the Learned Trial Judge, First Appellate Court upto the High Court was negatived holding that the dismissal of application for condonation of delay in relation to appeal and consequently dismissal of appeal itself cannot be treated to have been withdrawn but it is a decision on appeal itself. The Supreme Court in that case has surveyed large number of decisions on this aspect right from Privy Council in case of Nagandra Nath Dey ((1932) 59 Indian Appeals 283): (AIR 1932 PC 165). the decisions of the Supreme Court in case of Raja Kulkarni, 1954 SCR 384 : (AIR 1954 SC 73), M/s. Mela Ram and sons (1956 SCR 166): (AIR 1956 SC 367), in case of Sheodan Singh (AIR 1966 SC 1332), in case of Board of Revenue [1973 (3) SCR 492] : (AIR 1973 SC 2307) and then Full Bench decision of the Kerala High Court in case of Thambi v. Mathew reported in [(1987) 2 KLT 848] : (AIR 1988 Ker 48) and came to the following legal conclusion which according to us is the ratio of the decision: