SHREEDHAR DAS Vs. SAUDAMINI PANDA AND ORS.

JUDGEMENT

(1.) Defensibility of the r passed by the First Addl. Civil Judge or Division), Cuttack in Misc. Case No. 787 setting aside the judgment and decree d in T. A. No. 55/84 is called in question the present petitioner invoking the revisional iction of this Court under Sec. 115 of Code of Civil Procedure (in short 'the e).

(2.) The flashback of the litigation requires telescopic penetration. The revisionist instituted Title Suit No. 212/55 which came to be subsequently renumbered as Title Suit No. 71957 in the Court of the First Munsif, Cuttack, presently Civil Judge (Jr. Division), r specific performance of contract on the basis of an oral agreement with one Gopinath Dubey and others. The suit was contested by Gopinath Dubey and Nrusingha Charan Pandey. On 31.1.1958, the suit was decreed part directing refund of the amount under the agreement but the prayer for specific performance was refused as the plaintiff had t approached the court in clean hands, ever, a finding was also recorded that the 'sanction entered into by Gopinath Dubey Nrusingha Charan Pandey on 12.8.1955 was a sham one and no title passed thereunder. Said Nrusingha Charan Pandey preferred Me Appeal No. 68/58 challenging the finding of the court of first instance, but the peal was dismissed and the same was not challenged thereafter. It is pertinent to state re that as Gopinath Dubey could not pay e amount under the decree, as the case of he present petitioner has been put for the, a ale deed was executed on 11.2.1958 by said Gopinath Dubey in favour of the petitioner. Accepting the same the petitioner did not engage the part decree passed by the learned Mdl. Munsif. Being emboldened by the sale fed obtained from Gopinath Dubey and his sons, Sridhar Das, the present petitioner, instituted Title Suit No. 102/58 against Nrusingha Charan Pandey as his brother Balakrushna for declaration of title, recovery of possession, damages and for eviction. The said suit was dismissed. Appeals to the superior courts met with similar result and ultimately Civil Appeal No. 1942/70 preferred before the Supreme Court was also dismissed. Relying on the observation of the Apex Court, as indicated in the revision petition, Sridhar preferred Title Appeal No. 55/84 challenging the judgment and decree passed in Title Suit No. 212/55 along with a petition for condonation of delay of twenty-six years and eight months and four days. Notices were issued in the limitation matter, but Nrusingha Charan Pandey did not contest the appeal and eventually the limitation was condoned, the appeal was allowed and the suit was decreed. After passing of the decree, the decree holder levied execution and in the execution case delivery of possession was taken as alleged. It is relevant to state here that on the writ of delivery of possession (Ext.F) Nrusingha Charan Pandey signed as there was an understanding that the dispute in question would be amicably settled and a report would be submitted that there was no delivery of possession. In fact, as the allegation goes, on the same day said Nrushingha Charan Pandey signed some blank stamp papers without putting the date and handed over to one Rabi Tarei for writing out the decision of the SAHI Committee. Later on coming to know that the right of delivery of possession was in fact submitted, his counsel inspected the record and came to know about the entire facts and filed an application under Order 41, Rule 21 read with Sec. 151 of the Code to re-hear the appeal after setting aside the judgment and degree passed therein. The said application was stiffly contested by the appellant therein raising the issue of maintainability on the ground that the application was barred by limitation. As the same was not dealt with as a preliminary point Civil Revision No. 6/90 was preferred before this Court wherein this Court directed the appellate Court to consider the question of limitation specifically after giving full opportunity to both parties to be heard in the matter. Thereafter the appellate Court by order dated 22.6.1990 directed for hearing of the application for re-admission as well as the question of limitation. Feeling aggrieved by the same the petitioner preferred Civil Revision No. 517/90 wherein this Court directed as follow:-

(3.) Mr. A.K. Rao, the learned counsel for the petitioner challenging the impugned order has contended the lower appellate Court has not kept in view the directions issued in the previous civil revision by this Court and has decided the issue of limitation in an extremely cryptic manner which makes his order sensitively susceptible. It is also submitted by the learned counsel that the finding given with regard to the non-service of notice in the appeal is not based on proper appreciation of the materials on record and, therefore, there has been material irregularity in passing of the order. Mr. G.D. Dutta, the learned counsel appearing for the contesting opposite parties, the legal representatives of Nrusingha Charan Pandey, has supported the impugned order by contending that there has been detailed discussion after referring to the relevant evidence on record that there has been no service of notice on the predecessor-in-interest of the present opposite parties and such a finding being not contrary to the materials on record stands close scrutiny and does not necessitate interference by this Court. With regard to the issue of limitation it has been canvassed by Mr. Dutta that in the peculiar circumstances Nrusingha Charan Pandey was not able to be in know of pendency of the appeal or institution of the execution case and the lower appellate Court having believed that and having afforded an opportunity for real contest of appeal substantial justice has been done and, therefore, the order impugned should not be interfered with in exercise of revisional jurisdiction.