FAKIRA MISHRA Vs. BISWANATH MISHRA AND ORS.

JUDGEMENT

(1.) 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 ?

(2.) Opposite party no.1 as plaintiff filed a suit for partition, for a declaration that neither the will nor the order of mutation passed in favour of defendant no.1 has conferred any right on him and for permanent injunction restraining the defendants from interfering with his peaceful possession of the plaint schedule properties in the court learned Civil Judge (Junior Division), Puri, which was registered as Title Suit No.349/434-2001/95. The suit was decreed preliminarily. Assailing the judgment and decree, the petitioner, who was defendant no.1, filed R.F.A. No.122 of 2006 in the court of learned District Judge, Puri. Since there was a delay in filing the appeal, an application under Section 5 of the Limitation Act was filed. By order dated 14.3.2008, learned District Judge, Puri dismissed the application for condonation of delay. Consequently the first appeal was dismissed. With this factual background, the instant petition has been filed under Article 227 of the Constitution of India to lacinate the said order.

(3.) A Full Bench of this Court, in the case of Ainthu Charan Parida v. Sitaram Jayanarayan Firm Ramnibas and another, 1984 58 CutLT 248 (F.B), held that an order rejecting a memorandum of appeal or dismissing an appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure. But then, the apex Court, in the case of Shyam Sunder Sarma v. Pannalal Jaiswal and others, 2005 AIR(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.