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.
(2.) 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 ". 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 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 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 848 in case of Thambi v. Mathew and the judgment of the same strength of the Orissa High Court reported in AIR 1984 Orissa page 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 Full Bench decision of this Court in case of Mamuda Khateen v. Beniyan Bibi reported in AIR 1976 Calcutta page 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.
(3.) 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 Apex Court 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 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. " ;