KISHORE CHANDRA NATH AND ORS. Vs. KALINGA INSTITUTE OF MINING ENGINEERING AND TECHNOLOGY, ANGUL AND ORS.

JUDGEMENT

(1.) Aggrieved by and dissatisfied with the order dated 11.12.2006 passed by the learned Addl. District Judge, Angul in R.F.A. No. 9 of 2006, the instant petition has been filed under Article 227 of the Constitution. By the said order, learned Addl. District Judge rejected the application filed by the petitioners under Sec. 5 of the Limitation Act. Consequently the appeal was dismissed. The opposite parties as plaintiffs filed a suit for a declaration that plaintiff No. 2 was the Secretary of the Trust Board of plaintiff No. 1 and entitled to manage the affairs of the institution, defendant Nos. 1 to 5 ceased to be the members of the trust board and for permanent injunction against the defendants in the court of learned Civil Judge (Senior Division), Angul, which was registered as C.S. No. 69 of 2002. The suit was dismissed. Challenging the judgment and decree dated 21.3.2006 and 31.3.2006 respectively passed by the trial court, they have filed RFA No. 9 of 2006 under Sec. 96 CPC before the learned Addl. District Judge, Angul. Since there was a delay in filing the appeal, an application under Sec. 5 of the Limitation Act was filed. At the time of admission of the appeal, learned appellate court condoned the delay. Subsequently after appearance of the respondents and on hearing the parties and relying on the decision of this Court in the case of Panchu Das and another v/s. Jata Behera and others, : 62 (1986) CLT 557, that ex parte condonation of delay can be questioned by a party after appearance of the parties, learned appellate court recalled its order and accordingly dismissed the application for condonation of delay. Consequently the appeal was dismissed.

(2.) The seminal question that hinges for consideration of this Court is as to whether an appeal filed along with an application for condonation of delay in filing that appeal when dismissed on refusal to condone the delay is a decree ?

(3.) A Full Bench of this Court, in the case of Ainthu Charan Panda v/s. Sitaram Jayanarayan Firm represented by Ramnibas and another, : 58 (1984) CLT 248 (F.B.), held that an order rejecting a memorandum of appeal or dismissing an appeal following the rejection of an application under Sec. 5 of the Limitation Act for condonation of delay in preferring the appeal is not a decree within the meaning of Sec. 2(2) of the Code of Civil Procedure. But then, the apex Court, in the case of Shyam Sunder Sarma v/s. Pannalal Jaiswal and others, : AIR 2005 SC 226, held that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal.