BAL KISHAN Vs. TULSA BAI

JUDGEMENT

(1.) The facts necessary for deciding the controversy in this appeal are few and admitted. Indeed, the controversial question to be decided in this appeal is its maintainability. It is not disputed that when an appeal was filed by the defendants/appellants in the Court below, it was accompanied by an application under S.5 of the Limitation Act to conform with the statutory mandate of R.3A which was inserted in O.41 of the Code of Civil Procedure by the amending Act of 1976 with effect from 1-2-1977. The said appeal was filed on 20-2-1979 and on 5-4-1985 the impugned order was rendered in the appeal finally disposing of appellants' application and while dismissing the same, directing further that a decree be prepared to the effect that the appeal was dismissed as time-barred. It is also not disputed that in fact, a decree was drawn and the same is filed in this Court with the impugned order along with the memorandum of appeal. The first question is whether the instant appeal of the defendants who were also appellants in the Court below, is at all maintainable.

(2.) Respondent's counsel Shri Bharadwaj has cited decisions to establish his contention that the appeal is not maintainable. I propose, therefore, to look at those decisions first. The decision of this Court in Chhitu, AIR 1981 Madh Pra 13 in clear and categorical terms holds that R.3A(2) of O.41, C.P.C. puts an embargo in Court's power to proceed to do anything in the appeal unless the question of limitation is first decided and indeed, the appeal even cannot be heard on the question of admission itself. The view taken was that in such cases, there can be no appeal before the Court unless the delay is condoned. A Full Bench of Orissa High Court, in the case of Ainthu v. Sitaram, AIR 1984 Orissa 230 took the view that an order rejecting an appeal to following rejection of application for condonation of delay was not such an order as could be considered to be a decree within the meaning of S.2(2), C.P.C. and as such, the order was not appealable, but revisable. Their Lordships considered the import and purport of sub-rule (2) of R.3A in the context of sub-rule (3) as also sub-rule (1) thereof; as also of Rr. 9, 11 and 13 of O.41, to take the view that the Legislature made its will clear and explicit to make the provision positively mandatory that until delay in preferring the appeal was condoned, the appeal could not be dealt by the Court in any manner to decide any question in relation thereto. Thus, an order could not, therefore, be rendered under R.11 of O.41 finally adjudicating the dispute between the parties so as to touch the definition of 'decree'. A Division Bench of Punjab and Haryana High Court in the case of Des Raj v. Om Prakash, AIR 1986 Punj and Har 3 took the same view relying albeit on the Orissa Full Bench case. The Full Bench of the Calcutta High Court in Mamuda Khateen, AIR 1976 Cal 415 was, however, required to render a decision on the same question, without the aid of the newly inserted provision. In that case too, although R.3A had not come on Statute Book, the appellant who had filed the appeal in the Court below also filed with it an application under S.5 of the Limitation Act. Not only the application was rejected, the memorandum of appeal was also rejected, making it necessary for the appellant to challenge it in second appeal before the High Court. Their Lordships took the view that the order rejecting the memorandum of appeal was not a decree and second appeal, therefore, did not lie. It was held that till the favourable order was made in the application under S.5, the appeal was non est in law and the question of rejecting the memorandum of appeal did not at all arise. The order rejecting the memorandum of appeal, following rejection of application made under S.5, was merely an incident order, incidental to the rejection of the application.

(3.) Shri N.K. Jain, appearing for the appellants, has placed reliance on the decision in Sonba Keshao v. Rodrigues, AIR 1938 Nag 322, wherein the Court took the view that an order dismissing an appeal on the ground of limitation was decree within the meaning of S.2(2), C.P.C. and it was appealable. However, it must be noticed that the Court, in that case, was obviously not force of the newly inserted R.3A in O.41 as the same was on the Statute Book 40 years later. A decision of this Court in Munshi Singh v. Tularam, 1980 MPLJ (SN) 61 is also pressed in service by Shri Jain, but in this case also, the Court was not at all called upon to look at or apply the new provision and the decision was rendered merely on consideration of 5s.96 and 115, C.P.C. and S.5 of the Limitation Act.