- (1.) -Heard Shri Murlidhar, the learned senior counsel assisted by Shri Ajay Kumar Sharma, the learned counsel for the petitioners and Sri Nirvikar Gupta, the learned counsel for the contesting respondent. With the consent of the parties, the writ petition is decided finally without calling for a counter-affidavit.
(2.) IT transpires that a suit was decreed by a judgment dated 25.3.1993 and the same was put in execution. When the petitioners came to know about the execution of the decree, they filed an objection under Section 47 of the C.P.C. which is pending consideration. Notwithstanding the aforesaid, the petitioners were advised to file an appeal and, accordingly on 6.4.2005, an appeal was filed under Order XLI, Rule 1 of the C.P.C. along with an application under Section 5 of the Limitation Act to condone the delay in filing the appeal. The decree holders filed their objections, and subsequently, the appellate court by an order dated 7.8.2008, rejected the application for the condonation of the delay. The petitioners, being aggrieved by the rejection of the application for the condonation of delay, filed under Section 5 of the Limitation Act, has filed the present writ petition under Article 226 of the Constitution of India. A preliminary objection was raised with regard to the maintainability of the writ petition. The learned counsel for the respondents submitted that an order passed on an application for condoning the delay is in fact an order passed on the appeal which amounts to a decree, and, therefore, the said order is appealable under Section 100 of the C.P.C. and consequently the writ petition filed under Article 226 of the Constitution of India was not maintainable. On the other hand, the learned counsel for the petitioner submitted that an order passed on the application under Section 5 of the Limitation Act was not an order which would amount to a decree contemplated under Section 2 (2) of the C.P.C. and such an order was revisable and that a writ petition could also be filed under Article 226 of the Constitution of India. In support of his submission, the learned counsel for the petitioners placed reliance upon a decision of the Full Bench of the Calcutta High Court in Mamuda Khateen and others v. Beniyan Bibi and others, AIR 1976 Cal 415, wherein it was held that the order rejecting a time barred memo of appeal consequent upon the refusal to condone the delay under Section 5 of the Limitation Act, was neither a decree nor an appealable order, and therefore, such an order was revisable. The Full Bench further found that the said order was not a decree contemplated under Section 2 (2) of the C.P.C. The learned counsel also placed reliance upon a decision of the Punjab and Haryana High Court in Des Raj v. Om Prakash and another, AIR 1986 PandH 3, which has considered the decision of the Full Bench of the Calcutta High Court as well as the decision of the Full Bench of the Orissa High Court in AIR 1984 Ori 230 (FB). The reasoning adopted by the Full Bench of the Orissa High Court is based on the reasoning given by the Calcutta High Court.
(3.) IN the light of the aforesaid judgments, the learned counsel for the petitioners submitted that the present writ petition under Article 226 of the Constitution of INdia is maintainable since the order was not a decree, and therefore, was not appealable under Section 100 of the C.P.C. In my opinion, the submissions of the learned counsel for the petitioners is not correct inasmuch as the Full Bench of the Calcutta High Court has been squarely overruled by the Supreme Court in the case of Shyam Sundar Sharma v. Panna Lal Jaiswal and others, 2005 (1) SCC 436 : 2005 (1) AWC 410 (SC), wherein the Supreme Court has held that the Calcutta High Court failed to notice the earlier judgments of the Supreme Court.;