BAHADUL GOUNTIA ALIAS BISWAL Vs. KHURIRAM MEHER

JUDGEMENT

(1.) Plaintiff has filed this appeal against a reversing decision.

(2.) It is not necessary to issue notice to proforma respondents 4 to 15 as they were proforma defendants in the suit. In view of the order proposed to be passed, it is not necessary to recount in detail the cases of the parties. Suffice it to say that the plaintiff had filed the suit for permanent injunction which had been decreed by the trial Court and title Appeal No. 28 of 1994 was filed by the Sarpanch, Dunguripalli Grama Panchayat. in his official capacity, who had been arrayed as defendant No. 3. It appears that the said Title Appeal was barred by limitation and a petition for condonation of delay had been filed. From the order dated 3.10.1994 passed by the lower appellate Court, it appears that the appellate Court directed that the petition under Order 41, Rule 4-A, C.P.C. read with Section 5 of the Limitation Act shall be considered after appearance of the respondents. Even though delay had not been condoned at that stage, the lower appellate Court admitted the appeal on 3.10.1994. Subsequently, the appeal has been allowed and the decision of the trial Court has been reversed, which is being challenged by the plaintiff.

(3.) It appears from the order-sheet of the lower appellate Court though the question of limitation was required to be considered after appearance of respondents, the question was never considered even though subsequently, the appeal was disposed of on merit The learned Counsel for the appellant has submitted that since the appeal was barred by limitation and delay had not been condoned, the ultimate decree passed'by the lower appellate Court cannot be sustained. The learned Counsel appearing for the contesting respondent No. 1. on the other hand, submitted that it was open to the present appellant to raise this question after appearance of the respondents and since the appeal has been disposed of on merit, it must be taken that the delay in filing the appeal had been impliedly condoned.