K.J.SENGUPTA, J. - (1.) THIS matter has been referred to by the learned single Judge of this Court while entertaining a revisional application against an order refusing to condone delay under Section 5 of the Limitation Act. It appears from the recording of the learned Referring Judge the difference of opinion arose in view of the fact that another learned single Judge in case of civil order No.3817 of 2005 (Md. Oli Sheikh, [since deceased] and others v. Tarani Mahato and another) has held that order rejecting an application for condonation of delay under Section 5 of the Limitation Act, 1963 in connection with an appeal is not appealable order. Before the learned Referring Court an order refusing to condone delay in application under Section 5 of the Limitation Act, 1963, was challenged in the Revisional Jurisdiction of this Court. The said application was made in connection with application for setting aside of the ex parte decree passed under Order 9, Rule 13 of the Code of Civil Procedure. Another learned single Judge in case of C.O.808 of 2011 (Sri Gobindo Malik v. Sri Gopal Chandra Ghosh) on identical fact did not endorse the views expressed on the same point of law in case of Md. Oli Sheikh (since deceased) distinguishing the judgment on fact and held that such an order is an appealable and no revision lies. It is appropriate to note that the case of Md. Oli Sheikh and others v. Tarani Mahato and another, was taken to the Hon'ble Apex Court impugning the judgment and order passed thereon by the learned single Judge dated 5th August, 2010, but the Supreme Court has been pleased to reject the SLP with one line order with the words "the Special Leave Petition is dismissed".
(2.) ON the aforesaid factual backdrop the learned Referring Court has referred this matter on the following question- "Whether the ratio laid down in Shyam Sundar Sarma's case, (AIR 2005 SC 226) by the Supreme Court is not applicable in case of rejection of an application under Section 5 of the Limitation Act in title appeal or it has a restricted applicability in respect of the case where an application under Section 5 of the Limitation Act is filed in a proceeding initiated under Order 9, Rule 13 of the Code?" Before us, Mr. Hiranmoy Bhattacharya, learned Advocate appearing for the petitioner before the learned Referring Court, and Mr. Asish Bagchi, learned Advocate for the respondents made submission as follows:- They argued that learned Judge in case of Md. Oli Sheikh while entertaining revisional application against an order rejecting the prayer for condonation of delay under Section 5 of the Limitation Act in connection with first appeal, took note of the decision rendered by the Hon'ble Apex Court reported in AIR 2005 SC 226 in the case of Shyam Sundar and also the decision of the same Court in case of M/s. Mela Ram and sons v. Commissioner of Income Tax, (AIR 1956 SC 367) but distinguished factually that the said two Supreme Court decisions were not applicable. They say SLP challenging the said order was dismissed summarily, hence the said judgment cannot be said to be final one. They have placed before us not only the aforesaid two Supreme Court Judgments but other judgments of the Supreme Court also. They also placed judgment of Full Bench of the Kerala High Court reported in (1987) 2 Kerala LT 848 : (AIR 1988 Ker 48) in case of Thambi v. Mathew and the judgment of the same strength of the Orissa High Court reported in AIR 1984 Orissa 230 in case of Ainthu Charan Parida v. Sitaram Jayanarayan Firm and another reported in AIR 1984 Orissa page 230. They have also referred to the Ft 1 Bench decision of this Court in case of Marnuda Khateen v. Beniyan Bibi reported in AIR 1976 Calcutta 415. They contend that the views taken by the Kerala High Court and also the Orissa High Court held that the order rejecting an application under Section 5 of the Limitation Act in connection with appeal is appealable since on dismissal of appeal on the question of Limitation the decree is effectually affirmed passed by the learned Trial Court or First Appellate Court as the case may be. The views in Full Bench of this Court as above has been noted with disapproval in Shyam Sundar Sarma's case by the Supreme Court and held that views of the Full Bench of this Court is not an acceptable law. Mr. Hiranmay Bhattacharya. learned Advocate contends and it is not disputed by Mr. Bagchi in view of the authoritative pronouncement of the Supreme Court in case of Shyam Sundar Sarma's case and earlier decision in Mela Ram's case the order rejecting application for condonation of delay under Section 5 of the Limitation Act in connection with any appeal either first or second or order rejecting the application under the provision of Order 9, Rule 13 is an appealable not a revisable order. Hence, the views taken by learned single Judge in case of Md. Oli Sheikh and another is not a correct law laid down by His Lordship's notwithstanding dismissal of the SLP in the manner as quoted above. They say that one line summary dismissal of the SLP is not the decision on any point. Moreover this order of dismissal of SLP does not record any decision not to speak of consideration and discussion of other judgments as above. In the context as above we think after going through the judgment of the learned single Judge deciding the Md. Oli Sheikh as well as that of the learned Referring Court, we are called upon to express opinion on point as to when order rejecting application under Section 5 of the Limitation Act becomes appealable. Incidentally we have noted judgment of another learned single Judge who has decided on the same point of law which is similar to that of the learned referring Court but on different fact. Taking note of the aforesaid submission and examining the scope on the point of law referred to us we have gone through the judgment of the ApexCourt in case of Shyam Sundar Sarma. In that case Three-Judges' Bench of the Supreme Court was posted with the fact that order rejecting application for condonation of delay in connection with order refusing to set aside ex parte decree under Order 9, Rule 13 as well as an order refusing to condone delay intending to prefer appeal against the decree itself. It was contended that the nature of the two orders are different, so different procedure ought to have been adopted by the Court. While considering the aforesaid factual matrix the Hon'ble Supreme Court in that case discussed the position of the law while doing so Their Lordships had noted after considering the Full Bench of Kerala High Court as above Full Bench of this Court and earlier decision of the Supreme Court and the Privy Council and in particular Mela Ram's case and also another decision of the Supreme Court in Sheodan Singh v. Daryao Kunwar reported in AIR 1966 SC 1332 also the two Judge Bench of the Supreme Court in case of Ratan Singh v. Bijoy Singh and others reported in (2001) 1 SCC 469 : (AIR 2001 SC 279) has come to the conclusion in paragraph 13 as follows:- "Thus the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless the decision in the appeal." It is worthwhile to mention that the Supreme Court has not expressed any views whether order refusing to condone delay under Section 5 of the Limitation Act in connection with application under Order 9, Rule 13 is revisible or appealable.
(3.) ON careful reading of entire decision of the Supreme Court in case of Shyam Sundar Sarma, (AIR 2005 SC 226) we notice that the Supreme Court was dealing with the matter on the following factual background:- The plaintiff got an ex parte decree against the defendants. The first defendant filed a petition for setting aside ex parte decree under Order IX, Rule 13 of the Code accompanied by an application for condonation' of delay under Section 5 of the Limitation Act in filing that petition, and subsequently he also filed in appeal against the ex parte 'decree itself again with an application for condonation of delay in filing that appeal. The application for condonation of delay in filing the appeal as well as the appeal itself were dismissed for default. Thus the petition for setting aside the ex parte decree under Order 9, Rule 13 was filed first, followed by appeal keeping the said application for setting aside of the ex parte decree pending. But before the petition under Order IX. Rule 13 of the Code could be disposed of, the appeal had been dismissed for default as stated above. ON the dismissal of the appeal as above the earlier application for setting aside the ex parte decree was pressed for hearing contending that no appeal against the decree has been pending. Actually the appellant/defendant wanted to get rid of the mischief of the explanation mentioned in Order IX, Rule 13 of the Code of Civil Procedure, as there has been no appeal because dismissal of the appeal as above ought to be treated to have been withdrawn. This argument right from the Learned Trial Judge, First Appellate Court upto the High Court was negatived holding that the dismissal of application for condonation of delay in relation to appeal and consequently dismissal of appeal itself cannot be treated to have been withdrawn but it is a decision on appeal itself. The Supreme Court in that case has surveyed large number of decisions on this aspect right from Privy Council in case of Nagandra Nath Dey ((1932) 59 Indian Appeals 283): (AIR 1932 PC 165). the decisions of the Supreme Court in case of Raja Kulkarni, 1954 SCR 384 : (AIR 1954 SC 73), M/s. Mela Ram and sons (1956 SCR 166): (AIR 1956 SC 367), in case of Sheodan Singh (AIR 1966 SC 1332), in case of Board of Revenue [1973 (3) SCR 492] : (AIR 1973 SC 2307) and then Full Bench decision of the Kerala High Court in case of Thambi v. Mathew reported in [(1987) 2 KLT 848] : (AIR 1988 Ker 48) and came to the following legal conclusion which according to us is the ratio of the decision: ".......An appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone delay is nevertheless a decision in the appeal." Thus it is clear that the Supreme Court has not decided in Shyam Sundar Sarma's case (AIR 2005 SC 226) what would be the legal effect in case of dismissal of an application under Section 5 of the Limitation Act is filed in a proceeding initiated under Order IX, Rule 13 of the Code. Therefore, we think that language of reference of the learned Trial Judge is too broad to answer to vexed legal issue posed before Court frequently, but we take note of the substance of the matter instead of entire reference. In our considered view the ratio laid down in Shyam Sundar Sarma's case will be applicable in case any application under Section 5 of the Limitation Act is filed along with the appeal the Supreme Court is silent as we have already indicated what would be legal position in case of application under Section 5 of the Limitation Act filed in connection with application for setting aside ex parte decree under Order 9, Rule 13 of the Code. Effect of dismissal of an application for condonation of delay in the substantive proceeding was highly debatable issue until Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey in case of (1932) 59 IA 283 : (AIR 1932 PC 165) decided as follows:- "..............Any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court is an appeal within the ordinary acceptation of the term and that it is no less an apeal because it is irregular or incompetent." ;