LAWS(ORI)-2022-3-127

KAILASH CHANDRA PANDA Vs. STATE OF ORISSA

Decided On March 30, 2022
Kailash Chandra Panda Appellant
V/S
STATE OF ORISSA Respondents

JUDGEMENT

(1.) This civil revision has been filed challenging the order dtd. 22/12/2021 passed by the learned Additional District Judge, Dharamgarh in R.F.A. No. 6 of 2017 allowing the petition filed by the opposite parties under Sec. 5 of the Limitation Act, 1963.

(2.) The case of the petitioners according to Mr.Pradhan, learned counsel for the petitioners is that the petitioner Nos. 1 to 8 have filed C.S. No. 186 of 2012 valued at Rs.49,000.00 in the Court of learned Civil Judge (Jr.Divn.), Dharamgarh for declaration of their right title and interest and confirmation of possession over the suit schedule tank. Further they have prayed for declaration of their right to fish, water for irrigation and improvements over the suit tank. They also prayed for permanent injunction against present opposite parties from interfering with the possession and ownership of the plaintiffs. The said suit was decreed. Challenging the judgment and decree dtd. 25/12/2014 the present opposite parties filed R.F.A. No. 6 of 2017 making the present petitioners as respondents along with a petition under Sec. 5 of the Limitation Act, 1963 for condonation of delay. The delay condonation petition having been allowed subject to payment of cost of Rs.10,000.00 vide order dtd. 22/12/2021 passed in R.F.A. No. 6 of 2017, the said order has been challenged here in this civil revision.

(3.) At the outset when Mr.Pradhan, learned counsel for the petitioners was asked about the maintainability of the civil revision on the ground that the impugned order does not arise out of a out of a original suit or other original proceeding in the background of the decision of Supreme Court as rendered in Vishnu Awatar V. Shiv Autar and others reported in 1980 4 SCC 81 and the judgment of this Court as rendered in Smt. Banarasi Devi Saha V. Basudev Lal Dhanuka reported in Vol. 341992 O.J.D. 462(Civil) and also on the ground that the valuation of the original suit does not exceed Rs.5.00 lakhs, Mr. Pradhan contended that the impugned order under Annexure-5 passed in a petition for condonation of delay is clearly covered by the phrase 'other proceedings' as used in Sec. 115 of the Code of Civil Procedure, 1908 for short, "the Code" as is presently in force in the State of Odisha pursuant to the Code of Civil Procedure (Orissa Amendment) Act, 2010. He further contended that the impugned order cannot be construed as an order passed in an appeal as no appeal exists in the eyes of law unless the petition under Sec. 5 of the Limitation Act, 1963 is allowed condoning the delay. Accordingly he reiterated that the present civil revision is maintainable. In this context he relied upon following three decisions which are as follows:-