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Des Raj Vs. Om Parkash and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberRegular Second Appeal No. 1518 of 1976 Treated as civil Revn. No. 1936 of 1985
Judge
Reported inAIR1986P& H3
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(2); Limitation Act - Sections 5; Code of Civil Procedure (CPC) (Amendment) Act, 1976; ;Code of Civil Procedure (CPC) (Amendment) Rule, 1976 - 3A
AppellantDes Raj
RespondentOm Parkash and anr.
Cases ReferredB). Sonba Keshao Sonar v. Sardar Bahadur Jouquim Nasciments Rodriques
Excerpt:
.....of appeal for disposal on the merits, but it has faded out for the reason that the preliminary steps to present the appeal before the appellate court properly and effectively were not taken by the appellant. this conclusion gets buttressed from the expression 'the appeal is proposed to be filed'.the use of this expression even in face of the fact that memorandum of appeal along with the application for condonation of delay is on record, clearly bears out the intention of the legislature that till the delay is not condoned, it cannot be treated in law that there is an appeal before the court. it is well settled that if an appeal has been filed against an order or decree against which no appeal is maintainable, this court can treat the appeal as a revision......of appeal be treated to have been passed under s. 107(2) read with o. 7.r. 11, it amounted to a decree. a decree as defined was deemed to include the rejection of the plaint. he suggested that the rejection of the memorandum of appeal must also partake of the character of a decree because it had been passed by the appellate court in exercise of the powers under which a plaint was rejected by the trial court. if the rejection of a plaint under the provision of o. 7. r. 11 amounted to a decree, there was no reason why the rejection of the memorandum of appeal ordered under the same provisions by the court of appeal should not amount to a decree. the contention was rejected by the learned bench. gajendragadkar, j. (as he then was), while rejecting the contention, observed thus (at pp. 45.....
Judgment:

Rajendra Nath Mittal, J.

1. The question that arises for determination in the appeal is, whether the order dismissing an appeal after dismissal of an application under S. 5 of the Limitation Act is a decree with the meaning of s. 2(2) of the Civil P.C.

2. Briefly the facts are that the plaintiff instituted a suit for possession of the land in dispute on the ground that he had been dispossessed forcibly by the defendants. The suit was contested by the defendants who controverted the allegation of the plaintiff, and pleaded that they were in its possession with the consent of the plaintiff.

3. The trial court accepted the plea of the defendants and held that they were in possession of the land with the consent of the plaintiff. consequently it dismissed the suit. the plaintiff filed an appeal before the Senior sub Judge after the expiry of the period of Limitation on 8th April, 1974. Later, on 2nd April, 1976 he filed an application under S. 5 of the Limitation Act for condoning the delay in filing the appeal. It was dismissed on the ground that there was no sufficient cause to condone the delay. In view of the dismissal of the application the appeal was dismissed by the court as barred by time. The plaintiff came up in second appeal to this court which was listed before me. An objection was taken by the counsel for the respondent that no appeal was maintainable against the impugned order as it was not a decree. Both the parties referred to a number of judgments of the various High courts in which different views had been expressed. Consequently I referred the appeal for decision to a larger Bench. That is how the matter is before us.

4. In order to decide the question it will be necessary to read the definition of the word 'Decree' as given in S. 2(2) of the Code which is as follows:

'decree' means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within s. 144, but shall not include--

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal or default.

Explanation--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.'

It is evident from a bare reading of the definition that a decree has the following essential elements;

(i) There should be an adjudication;

(ii) the adjudication should determine the rights of the parties regarding all or any of the matters in controversy;

(iii) the adjudication should be in a suit; and

(iv) the adjudication should be formal and conclusive so far as that court is concerned.

It is further evident that some orders which otherwise do not constitute decrees are included in the definition and certain orders which constitute decrees are excluded from it. The former category includes the orders of rejection of the plaint and determination of any question within s. 144 of the code.

5. In the present case, as already stated, the appeal has not been decided on merits but dismissed on the ground of limitation. The learned counsel for the appellant argues that the order of rejection of a plaint on the ground of limitation under O. 7, R. 11 read with S. 2(2) of the code amounts to decree. He further argues that if R. 11 of O. 7 is read with S. 107(2), the order of rejection of memorandum of appeal will also amount to a decree.

6. We have duly considered the argument but we do not find substance in it. It is true that the rejection of a plaint on the ground of limitation is a decree and that S. 107(2) of the code provides that the Appellate court had the same powers and performs the same duties as are conferred by the code on the courts of original jurisdiction in respect of suit. However, while interpreting these two provisions, the High Court have taken different views. Some of the High Courts have taken the view as projected by the learned counsel for the appellant but we do not agree with his submission and are of the view that it is not open to the court to extend the meaning of the word 'decree' and include in it other kind of orders though they are similar to be orders expressly included in the definition. Consequently the order of the rejection of the memorandum of appeal does not amount to rejection of the plaint and thus does not fall within the definition of the word 'decree'. If the Legislature intended that such an order should be treated as a decree, it would have provided so in the definition. Therefore, it is not possible for us to read in the definition of the word 'decree'. the order of rejection of memorandum of appeal.

7. We find support in the above view from a Division Bench Judgment of the Bombay High court in Pahltan Bank Ltd. v. Baburao Apppajirao AIR 1954 Bom 43. A contention was raised therein by Mr. Madbhavi, counsel for the appellant, that if an order rejecting the memorandum of appeal be treated to have been passed under s. 107(2) read with O. 7.R. 11, it amounted to a decree. A decree as defined was deemed to include the rejection of the plaint. He suggested that the rejection of the memorandum of appeal must also partake of the character of a decree because it had been passed by the appellate court in exercise of the powers under which a plaint was rejected by the trial court. If the rejection of a plaint under the provision of O. 7. R. 11 amounted to a decree, there was no reason why the rejection of the memorandum of appeal ordered under the same provisions by the court of appeal should not amount to a decree. The contention was rejected by the learned Bench. Gajendragadkar, J. (as he then was), while rejecting the contention, observed thus (at Pp. 45 and 47):

'Section 2, sub-sec (2), defines a decree and in doing so it provides that the rejection of a plaint and the determination of any question within S. 47 or s. 144 shall be deemed to be a decree; it further provides that it shall not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default. It seems to us difficult to accept Mr. Madbhavi's contention, because we do not think we can add to this definition other orders of adjudication on the ground that they are similar to the orders which are included in the definition itself.

If Legislature had intended that an order rejecting a memoraandum of appeal should be included in the decree, it would have been so easy for the Legislature to make appropriate additions in the definition of the decree itself. It seems to us that it would not be open to the Court to add to this definition any other kinds of adjudications however similar they may appear to be, to the adjudications which are expressly included in the definition.

..................................................................................................................

It would thus be notice that the authority of the Privy council is in support of the view that if an order has been made by the court of appeal rejecting the appeal on the ground that proper court-fees have not been paid, the appeal virtually had not come before the Court of appeal for disposal on the merits, but it has faded out for the reason that the preliminary steps to present the appeal before the appellate court properly and effectively were not taken by the appellant.'

The matter may be examined from another point of view. Section 5 of the Limitation Act provides that an appeal may be admitted after the prescribed period if the appellant satisfies the court that he had sufficient causes for not preferring it within limitation. From the language of the section it is clear that the appeal cannot be admitted to hearing unless the court finds that there were sufficient grounds for not filing the appeal within time. Rule 9 of O. 41 relates to registry of memorandum of appeal and R. 11 of the same order to power to dismiss appeal without serving notice on the respondent or his pleader. A conjoint reading of both the rules shows that the court can dismiss an appeal without issuing notice to the other side if the memorandum of appeal is admitted for consideration. However, if the appeal cannot be admitted for consideration for the reasons that it is barred by limitation, the question of adjudication by the court on merits under R. 11 cannot arise. Thus if the appeal is dismissed on the ground of limitation, the question of adjudication by the court on merits cannot be said to have arisen. Therefore, such an order cannot be said to be a decree.

8. the matter may be examined yet from another point of view. The code was amended by the Civil P.C. (Amendment) Act, 1976 (hereinafter referred to as the Amendment Act). Rule 3A has been added to O. 41 which is set out below:

'3A-(1) when an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period.

(2) If the court sees no reason to reject the application without the issues of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the court before it proceeds to deal with the appeal under R. 11 or R. 13, as the case may be.

(3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under R. 11, decided to hear the appeal.'

The objects and reasons for introducing the said rule have given in sub-clause (iii) of clause 90 of the civil P.C. (Amendment) Bill, 1974 which is as follows:

'Where an appeal is filed after the expiry of the period of limitation, it is the practice to admit the appeal subject to the provisions as limitation being raised at the time of the hearing. This practice has been disappproved by the Privy council which has stressed the expediency of adopting a procedure for securing the final determination of the question as to limitation even at the stage of admission of the appeal. New Rule 3A is being inserted to give affect to the said recommendation.'

9. It is clear from sub-rule (I) of R. 3A that an appellant at the time of filing an appeal, which is barred by limitation, is required to file an application giving the reasons that he had sufficient cause for not filing the appeal within the period of limitation. It is incumbent upon the court to decide the application before it proceeds to decide the appeal on merits. The court can dismiss the application without issuing notice or after issuing notice to the respondent. In case the court accepts the application, only then it can proceed under R. 1. or Rr. 13 of O. 41. Therefore, if the application for condoning the delay in filing the appeal is dismissed, the question of registration of the appeal under R. 9 and its consideration under R. 11 does not arise. In such a situation it cannot be held that the order of dismissal amounts to affirmance of the decree of the trial court and, therefore, is decree within the meaning of s. 2(2) of the code. The above conclusion also finds support from the objects and reasons for introduction of R. 3A which has been reproduced above. In the above view I am fortified the following observations in Chhitu v, Mathuralal, AIR 1981 Madh pra 13;

'The governing expression in the sub-rule (2) shall be finally decided by the court before it proceeds to deal with the appeal under R. 11 or R. 13, as the case may be makes it imperative for the appellate court first to decide the question of limitation and puts an embargo on its (court's) power to proceed further in the appeal. The appeal cannot be heard even on the question of admission much less on merits. In effect there is no appeal before the court unless the delay is condoned. This conclusion gets buttressed from the expression 'the appeal is proposed to be filed'. The use of this expression even in face of the fact that memorandum of appeal along with the application for condonation of delay is on record, clearly bears out the intention of the legislature that till the delay is not condoned, it cannot be treated in law that there is an appeal before the Court.'

10. As already mentioned above, there has been considerable controversy with regard to the question between various High courts. The learned counsel for the respondents referred to Balaji Dhumnaji Koshti v, Mt. Mukta Bai, AIR 1938 Nag 122 (FB), In representatives N. Kayambu Pillai, AIR 1941 Mad 836 (FB), Mamuda Khateen v. Beniyan Bibi, AIR 1976 Cal 415 (FB) and Ainthu charan Parida v. Sitaram Jauanarayan firm, AIR 1984 Orissa 230 (FB) in support of the view.

11. In Balaji Dhumnaji Koshti's case (supra) it was observed that an order rejecting a memorandum of appeal because it is insufficiently stamped, is not appealable. It does not fall within the definition of a decree given in s. 2(2) and has not been made appealable as an order under O. 43 of the code. similar view was taken in similar circumstances in In re Kayambu Pillai's case (supra) by the Madras High court. In the above two cases though the memorandum of appeal was rejected on the ground of insufficiency of court-fees, yet the ratio of the cases is applicable if the memorandum of appeal is rejected on the ground of limitation.

12. The facts in Mamuda Khateen's cases (supra) are the same as those in the present case. There was difference of opinion on the said proposition within the court and, therefore, the matter was referred to the Full Bench. The learned chief justice speaking for the court, observed as follows(at P. 416):

'It seems to us that when appeal is barred by limitation and an applications made under S. 5 of the Limitation Act for condemnation of the delay along with the memorandum of appeal, until the application under S. 5 is allowed the appeal cannot be filed or admitted at all. In other words till a favourable order is made on the application under S. 5 the appeal is non est. In that event, the question of rejecting a memorandum of appeal does not arise at all at this stage.

If the application under s. 5 be rejected the order rejecting the application cannot be a decree. And the order rejecting the memorandum of appeal is merely an incidental order.

Our answer therefore to the question referred to us is that an order rejecting the memorandum of appeal following the rejection of an application under S. 5 of the Limitation Act for condonation of the delay in filing the appeal is not a decree but an order against which an application in revision under s. 115 of the code may lie but no appeal under O. 43, R. 1 of the code can be preferred.'

The learned Bench, with the above observations, overruled two decisions reported as Rakhal chandra Ghosh v. Ashutosh Ghosh, (1913) 17 cal WN 807 and Sydhansu Bhusan Pandey v, Majho Bibi, (1938) 42 Cal WN 72.

The above view was followed by a full Bench of Orissa High court in Ainthu Charan parida's case (AIR 1984 Orissa 230) (supra). The learned Bench, after noticing a large number of cases, observed that an order rejecting a memorandum of appeal or dismissing an appeal following the rejection of an application under S. 5 of the Limitation Act for condonation of delay in preferring the appeal is not a decree within the meaning of s. 2(2) of the Code. The learned Full Bench overruled a Division Bench judgment of the court in Banwarilal Bhoid v. P.Neelkantham, AIR 1965 Orissa 102, which relying on Rakhal chandra Ghosh's case (1913--17 Cal WN 807) (supra) had observed that dismissal of an appeal as time barred disposed of the appeal finally so far as the appellate court was concerned and, therefore, would come within the first part of the expression 'decree'. We are in respectful agreement with the view expressed in the aforesaid cases.

13. The learned counsel for the appellant referred to Gulab Rai v. Mangli Lan (1885) ILR 7 All 42, J.R. williams, v. T.A. Brown (1886) ILR 8 All 108 (FB). Sonba Keshao Sonar v. Sardar Bahadur Jouquim Nasciments Rodriques, AIR 1938 Nag 322, Gajadhar Bhhagat v, Moti Chand Bhagat, AIR 1942 Lah 64. He had also referred earlier to Banwarilal Bhoid's case (supra) but when it came to his notice that the judgment had been overruled, he did not lay stress on the said judgment. It is true that in Gulab Rai's and J.R. William's case (supra) it was observed that an order rejecting a memorandum of appeal as barred by limitation, was a decree within the meaning of s. 2(2) of the code and it was, therefore, appealable. But the word 'decree' was differently defined in the code as was in existence at that time. Therefore, the learned counsel cannot derive any benefit from the observations therein.

14. In Sonba Keshao Sonar's case (AIR 1938 Nag 322) (supra) the learned single judge of that court did observe that an order dismissing an appeal on the ground that is was barred by limitation was a decree and so appealable while making the above observations the learned judge followed Gulab Rai's case (1885 ILR 7 All 42) (supra) but did not notice the Full Bench decision in Balaji Dhumnaji Koshti's case (AIR Nag 122) (supra) which had been decided prior to that case.

15. The learned single judge of Patna High court in Gajadhar Bhagat's case (AIR 1941 Pat 108) (supra) took the view that the rejection of a memorandum of appeal as being out of time does amount to a decree and is appealable.

16. In Mt. Barkat Bibi's case (AIR 1942 Lah 64) (surpa) a learned single judge of the Lahore High court held that an order of appeallate court dismissing the memorandum of appeal for non-payment of deficit Court-fees was a decree and was, therefore, appealable as such. With great respect to the learned Judges we are not inclined to accept the view expressed in the said two judgments.

17 After taking into consideration the law on the point we are of the view that an order dismissing an appeal after dismissal of an application under S. 5 of the Limitation Act is not a decree within the meaning of S. 2(2) of the code.

18. Mr. Puri, faced with that situation, has argued that the appeal be treated as a revision and the delay in filing the appeal in the first appellate court be condoned. So far as the first part of the argument is concerned, there is force in it. It is well settled that if an appeal has been filed against an order or decree against which no appeal is maintainable, this Court can treat the appeal as a revision. Mr. Gandhi has also not been able to assail that proposition. Therefore, we treat the appeal as a revision.

19. Now the question is whether in revisional jurisdiction this court will condone the delay in filing the appeal. Section 115 of the code is enacted with a view to enable the High Court to correct the errors of jurisdiction committed by the subordinate courts. It cannot interfere with the finding of fact arrived at by the subordinate Courts and substitute its own decision after re-appraisal of the evidence. the grounds given by the court below for not condoning the delay are based on appraisal of the evidence by it and it will not be proper for us to upset the same after re-appraising the evidence in the revision petition.

20. For the aforesaid reasons we do not find any merit in the revision petition and dismiss the same with no order as to costs.

21. Petition dismissed.


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