MADAN MALLIK AND ANR. Vs. SUDARSAN DALABEHERA

JUDGEMENT

(1.) THIS second appeal has been filed by Defendants 1 and 2 against the reversing judgment dated the 22nd of January, 1955 of Sri L. Panda Additional District Judge of Puri arising out of a suit for specific performance of a contract in the following circumstances.

(2.) DEFENDANT No. 1 contracted to sell the lands with an acreage of 6.50 in favour of the present Plaintiff on 27.1.1943 and in evidence of the contract he executed a deed of agreement (ext. 1) having received the consideration of Rs. 130/ -. The contract also was to the effect that Defendant No. 1 is to execute a kabala after getting his name mutated in the State papers. Defendant No. 2 on the 23rd of February 1943 made an application to the ex -Ruler of Daspalla on the allegation that in fact Defendant No. 1 had already contracted to sell the lands in his favour. On this application of Defendant No. 2 the Ruler passed an order on the 31st of March 1943 (ext. 5) that Defendant No. 1 is to execute a kabala in favour of the Plaintiff in respect of halt of the properties covered by ext. 1 and in respect of the balance he is to execute a kabala in favour of the present Defendant No. 2. Thereafter Defendant No. 1 made a further application for partitioning the lands after demarcation by the Kanungo of the State and as ordered by the Ruler, partition 'md demarcation were effected by the Kanungo which Was approved by the Ruler on the 26th of August, 1943 (ext. 8). It is to be mentioned here that this partition was made 00 the agreement between the parties, that is, the Plaintiff, Defendant Nos. 1 and 2 before it was approved by the Ruler. Thereafter, Defendant No. 1 sold half of the properties covered by ext. 1 in favour of Defendant No. 2 after getting his name mutated in the State papers on 23.9.1946. The trouble arose after the execution of the first Kabala. Defendant No. 1 did not stop there but subsequently on 31.8.1949 he executed another Kabala in respect of the balance of the properties covered by ext. 1 in favour of Defendant No. 2 also which gave rise to the cause of action for the Plaintiff to bring the suit for specific performance of a contract in respect of the half of the properties which were partitioned by the Kanungo and which were allotted to his share on the agreement between all the parties and approved by the Ruler. The Defendants had taken several pleas which I need not recount here. One plea was the taken that the suit is barred by limitation. The trial Court after recording evidence in the case and exhibiting the documents disposed of the entire suit only on the preliminary issue of limitation shirking the responsibility to decide the whole case and give decision in respect of each of the issues. According to him the suit was barred by limitation and therefore the Plaintiff came up in appeal before the lower appellate Court who decided the point of limitation in favour of the Plaintiff and accordingly remanded the case to the trial court for disposal in accordance with law on the merits after giving findings and reasons in respect of each of the issues framed by the trial court. Against that order of remand this appeal has been filed. Indeed, it is to be observed no second appeal lies against an order of remand. It escaped the notice at the time of admission. But nevertheless I will treat it as a miscellaneous appeal as the order passed is one under Order 41, Rule 23 Code of Civil Procedure which is appealable under the provisions of Order 43 Code of Civil Procedure.

(3.) EVEN if we take that the basis of the suit must be taken, as contended by Mr. Mohapatra, to be the date of the ext. 1, that is, the original contract on 27 -1 -1943, still then the suit cannot be thrown off as barred by limitation because the agreed term was also to the effect that Defendant No. 1 is to execute the kabala in favour of the present Plaintiff only after getting his name mutated in the State papers. Ext. 10 show that in fact mutation was effected on 23.9 -46. The Case therefore will come under the first clause of column 3 of Article 113 of the Limitation Act and even calculating the period of three years from 23 -9 -1946 the suit is within time.