JAGABANDHU SAMAL Vs. RABI SAMAL & OTHERS

JUDGEMENT

(1.) This petition challenges the order dated 9.8.2016 passed by the learned Addl. District Judge, Jagatsinghpur in RFA No.51 of 2014 whereby the learned appellate court dismissed the appeal on limitation.

(2.) Gandharba Samal, father of the opposite parties 1 to 5, as plaintiff filed T.S. No.12 of 1985 in the court of learned Civil Judge (Junior Division), Jagatsinghpur for partition. The suit was decreed ex parte. Assailing the judgment and decree, the petitioner, who was defendant no.10, filed R.F.A. No.51 of 2011 in the court of learned Additional District Judge, Jagatsinghpur. Since there was delay in filing the appeal, an application under Section 5 of the Limitation Act was filed. By order dated 9.8.2016, learned Additional District Judge, Jagatsinghpur dismissed the application for condonation of delay. Consequently the first appeal was dismissed.

(3.) 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 ?