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Gelhi Vs. Nanda Kishore Parida and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberA.H.O. No. 5 of 1977
Judge
Reported inAIR1983Ori52
ActsOrissa High Court Order, 1948
AppellantGelhi
RespondentNanda Kishore Parida and ors.
Appellant AdvocateR.N. Sinha, ;S.N. Sinha and ;P.K. Rautray, Advs.
Respondent AdvocateN. Mukherjee, ;B.S. Mohapatra, ;S.N. Satapathy and ;S. Mohanty, Advs.
DispositionAppeal allowed
Cases ReferredShah Babulal Khimji v. Jayaben D. Kania
Excerpt:
.....filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the..........memo was filed stating that on verification, it was found that nothing was to be excluded from the suit schedules b, c, d, e and f as they constituted the balance after exclusion of the properties in schedule 'kha' of ext. 1 and defendants 4 to 7 had already been allotted the properties in schedule 'kha' of ext. 1 and they could not claim anything from the suit property. defendant no. 3 had died during the pendency of the appeal. it was held that the suit properties excluding those transferred by defendant no. 3 were to be divided half and half-plaintiffs 1 to 3 would get one halt and defendant no. 2 the other plaintiffs 1 to 4 thereafter filed an application under order 47, rule 1 read with sections 151, 152 and 153 of the civil p. c. for review of the judgment. it was contended that.....
Judgment:

Patnaik, J.

1. This is an appeal by defendant No. 3 under the Letters Patent against a decision of one of the learned Judges of this Court granting review of the judgment delivered in First Appeal No. 264 of 1969.

2. Facts giving rise to this appeal in brief:

Title Suit No. 3 of 1967 was instituted for partition of the properties described in Schedules B, C, D, and E of the plaint. Certain properties described in Schedule F had been alienated by defendant No. 3. A declaration had been sought that the said transfers in favour of defendant No. 1 by defendant No. 3 were invalid. There was an issue regarding adoption of plaintiff No. 4. The trial court disbelieved the story of adoption.A preliminary decree decreeing the shares of plaintiffs Nos. 1 to 4 as 1/4, of defendant No. 2 as 1/4, of defendant No. 3 as 1/4 and of defendants 4 to 7 as 1/4 was passed. It was directed that the property alienated would be adjusted from the share of defendant No. 3. Plaintiffs filed first appeal No. 264 of 1969. During the course of the hearing of the first appeal a joint memo was filed on 27-11-74 stating that certain items of property described in Schedules B, C, D and E were to be excluded from partition as those items had been allotted to defendants 4 to 7 in an earlier compromise as per the compromise petition Ext. 1.

3. Subsequently, on 16-12-74 another joint memo was filed stating that on verification, it was found that nothing was to be excluded from the suit Schedules B, C, D, E and F as they constituted the balance after exclusion of the properties in Schedule 'Kha' of Ext. 1 and defendants 4 to 7 had already been allotted the properties in Schedule 'Kha' of Ext. 1 and they could not claim anything from the suit property. Defendant No. 3 had died during the pendency of the appeal. It was held that the suit properties excluding those transferred by defendant No. 3 were to be divided half and half-plaintiffs 1 to 3 would get one halt and defendant No. 2 the other Plaintiffs 1 to 4 thereafter filed an application under Order 47, Rule 1 read with Sections 151, 152 and 153 of the Civil P. C. for review of the judgment. It was contended that the expression 'excluding those transferred by defendant No. 3' appearing in the concluding paragraph of the judgment was vague general and could be said to comprise all alienations made by defendant No. 3 and not only those impugned in the suit. So the transfer should be restricted to Ext. A only and it was urged that the order was not very definite and would create difficulty in future. In para 10 of the review petition it was stated that defendant No. 3 'sold 2 mnas (sic) of land to deft. No. 1 under Ext. A'. Under grounds (a), (b) and (c) objection was taken to the expression of general character as stated above. Ground (d) was innocuous. On the aforesaid grounds, the prayer was for correction of the judgment.

4. It is submitted on behalf of the appellants that the learned single Judge, on an erroneous impression that by the joint memo filed on 16-12-74 parties requested the Court to partition the properties covered by Schedules B, C, D, E and F; reviewed the judgment. The joint memo filed on 16-12-74 was for withdrawal of the memo filed on 27-11-74. By the memo dated 27-11-74 the parties wanted certain properties included in Schedules B, C, D and E to be excluded as those had already been allotted to defendants 4 to 7. The memo dated 16-12-74 was to the following effect:--

'On verification it is found that nothing is to be excluded from the suit properties in Schedules B, C, D, E and F as they constitute the balance after exclusion of the properties in Schedule Kha of Ext. 1. Defendants Nos. 4, 5, 6 and 7 have already been allotted Schedule Kha from the Ext. 1 and cannot claim anything from suit property'.

So, the memo was for withdrawal of the earlier memo dated 27-11-74, that is to say, the earlier statement that certain properties included in Schedules B, C, D and E had been allotted to defendants 4 to 7 was found to be incorrect and was not stuck to. The memo dated 16-12-74 does not convey that properties included in Schedules B, C, D and E were liable for partition.

5. The learned counsel for the plaintiffs-respondents have no answer to this. A perusal of the two memos also leaves no manner of doubt that the effect of the latter memo was only the withdrawal of the former and had no impact on the suit. The only purport of the latter memo was admission of the earlier memo as an error and that is all. With respect to the learned single Judge, we are of the view that there was no error apparent on the face of the record and the property transferred by defendant No. 3 in the judgment in First Appeal No. 264 of 1969 indisputably meant 'transferred by defendant No. 3 in favour of defendant No. 1' and the judgment dated 24-12-76 in Civil Revision No. 1 of 1975 was incorrect.

The plaintiffs-respondents, however, contended that this appeal was not maintainable as no second appeal is provided in the Civil P. C. Their further contention was that the order passed on review application was not judgment.

The simple answer to this submission is that appeal is provided in Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna, which was made applicable by the Orissa High Court Order, 1948 to Orissa High Court.

Controversy was raging in the country for over a century regarding the meaning of judgment. However, the same has been set at rest by the authoritative pronouncement of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania (AIR 19981 SC 1786). In para 120 guidelines and illustrations have been furnished to help to decide whether an order is a judgment within the meaning of Letters Patent. An order granting review has been held by the Supreme Court to be a judgment. That answers the objection of the plaintiffs-respondents.

6. In the result, the appeal is allowed, order dated 24-12-76 passed in Civil Review No. 1 of 1975 is set aside and the original judgment in First Appeal No. 264 of 1960 is restored. No costs.

Behera, J.

7. I agree.


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