- (1.) RAN Vijai Singh, J. This Second Appeal has been filed against the judgment and decree dated 29. 3. 2008 passed by Additional District Judge, Court No. 2, Deoria in appeal no. 8 of 1976 Parashuram Pandey and others vs Mahendra Dhar Dubey and others and also against the judgment and decree dated 28. 5. 2008 passed by the same court in review petition No. 6 of 2008 Parashuram Pandey and others vs Rajendra and others by which the original suit no. 433 of 1972 has been abated under Section 5 (2) of the U. P. Consolidation of Holdings Act.
(2.) THE Stamp Reporter has raised two objections namely:- (1) If the limitation for filing Second Appeal is counted from the date of the order of review then the appeal is well within time and if the limitation is counted from the date of original decree passed by the Appellate Court then the appeal is barred by time. (2) THE Second Appeal is not maintainable against the order passed in Review Application. Sri V. D. Ojha, learned counsel who has filed caveat on behalf of the plaintiffs respondents has also raised the same preliminary objection. In his submissions in case the appeal is treated against the order dated 28. 05. 2008 passed on the review application then Second Appeal is not maintainable and the remedy is to file miscellaneous appeal under Order 43 Rule 1 (W) of the Code of Civil Procedure ( in short C. P. C.) and in case, it is treated an appeal against the judgment and decree dated 29. 03. 2008 then the appeal is barred by time. Since there is no application under Section 5 of the Indian Limitation Act for condoning the delay in filing Second Appeal, therefore, it should be dismissed as barred by time. He has further submitted that both the orders cannot be challenged together in one Appeal. Sri Sankatha Rai, learned counsel for the appellants has submitted before the Court that the limitation will be counted from the date of the last order passed in the review application and not from the date of original judgment dated 29. 03. 2008. In his submission the Second Appeal is well within time and it is maintainable.
(3.) I have heard Sri Sankatha Rai, learned counsel for the appellants, Sri V. D. Ojha and Sri S. A. Lari, learned counsel for the respondents. This case has got a chequered history. The respondents plaintiffs have filed a suit for cancellation of the sale deed on 22. 4. 1972 before the IIIrd Additional Munsif, Deoria. In the said suit the defendants appellants have filed an application for abating the suit under Section 5 (2) of U. P. Consolidation of Holdings Act on 08. 01. 1975. The plaintiffs respondents have raised an objection that the case should not abate before the Consolidation Authority, as it is the suit for cancellation of the sale deed on voidable ground. The application of the defendants appellants was rejected by the Trial Court on 30. 5. 1975. This order has never been challenged.;