JAGAT JANANI DEBI Vs. JYOTSNA BASU

JUDGEMENT

(1.) Along with the Rule, there is an application Under Section 5 of the Limitation Act in respect of the instant revisional application. By an order dated 8-4-75, P. K. Banerjee, J. when issuing the Rule directed that the application for condonation of delay be considered at the time of hearing of the Rule. In that application in paras 4 and 5 an explanation has been given by the petitioner why the revisional application could not be filed in time. I am satisfied with the explanation given and accordingly I condone the delay and I take up the matter (the revisional application) for hearing.

(2.) This revisional application is made against the judgment and order dated 10th Dec. 1974 passed by Sri S. K. Biswas, Additional District Judge, 2nd Court, Howrah, passed in Misc. Appeal No. 39 of 1974 reversing the order made in Misc. Case No. 41 of 1971 by the learned Munsif, 1st Court, Howrah. The petitioner filed a Title Suit, being Title Suit No. 140 of 1967 for dissolution of partnership and for accounts. The defendants Nos. 1 and 2 appeared in the suit and filed written statement. A decree was passed on 16-11-71 ex parte as the defendants failed to appear or to take any steps. Against that ex parte decree an appeal was preferred. At the same time an application for restoration under Order 9, Rule 13, CPC was also made before the learned Munsif. aS no steps for stay of hearing of the appeal was taken it was disposed of before the restoration matter was taken up by the learned Munsif. So far as the appeal was concerned the memo, of appeal was rejected as being out of the application for condonation of delay being also rejected. But no appeal was preferred against the order of rejection of the memo, of appeal passed by the learned Judge. When the restoration matter came up before the learned Munsif he dismissed it on the ground that as the appeal had been disposed of he was not competent to hear the matter under Order 9 Rule 13 of the C. P. C. Against that order the opposite party preferred an appeal. The lower appellate court remitted the case back to the learned Munsif on the ground that the rejection of memo, of appeal is not dismissal of the appeal and, therefore, the lower court's judgment and decree did not merge with the appellate decree. Against that order of the lower appellate court the present petitioner has come up in revision.

(3.) The question before me is whether the rejection of the memo of appeal tantamounts to rejection of the appeal and whether the judgment of the learned Munsif merges in the- order of the appellate court. The learned Munsif was of the view that he had no jurisdiction to set aside the ex parte decree under Order 9 Rule 13, C. P. C. after the same has been affirmed by the appellate court by rejection of the memo, of appeal and according to him, whether the appeal was dismissed on merits or it was dismissed summarily, as in the present case, as being time barred, is irrelevant. Accordingly the decree of the original court had merged in the order of the appellate court by rejection of the memo, of appeal and, therefore, he was incompetent to hear the restoration matter. The lower appellate court Judge, however, found that rejection of memo, of appeal is not the same as rejecting the appeal or dismissing the appeal. Hence there can be no merger of the decree passed by the Court below with that of the order passed by the learned Judge in appeal. Hence there was no bar for learned Munsif to hear the application under Order 9 Rule 13 C. P. C.