- (1.) HEARD the parties.
(2.) THIS appeal purported to have been filed under Order XLIII, Rule 1(r), CPC is directed against the order dated 3.9.2003 passed by Sub -Judge No. 1, Deoghar by which he has rejected the suit being title (Declaration) Suit No. 147/2003. The plaintiff -petitioner filed the aforementioned suit for recovery of Rs. 7,27,000/ -. The Court below rejected the plaint under Order VII, Rule 11(d), CPC holding that the claim was barred by limitation.
(3.) THE office gave a note regarding, maintainability of this Misc. appeal. A Bench of this Court, by order dated 20.5.2004, took the view that an appeal under Section 96, CPC will not lie and proper course is to file a Misc. appeal under Order XLIII, Rule 1 read with Section 151,CPC. Accordingly notices were issued to the respondents who appeared and raised objection with regard to maintainability of the appeal. The matter was again placed before a Bench of this Court and ultimately the matter was referred to Division Bench for deciding the question of maintainability of the appeal. The order dated 13.7.2006 passed by the learned Single Judge referring the matter to Division Bench reads as under: Mr. V. Shivnath, appearing for the respondents submitted that the order rejecting plaint under Order VII, Rule 11(D) of the Code of Civil Procedure (on the finding that the claim was time barred), amounts to a decree in view of AIR 1982 Pat 75, against which appeal under Section 96 of the Code of Civil Procedure may lie and this miscellaneous appeal is not maintainable under Order XLIII of the CPC. Mr. A.K. Sahani, appearing for the appellant pointed out that a Bench of this Court by order dated 20.5.2004 held that this miscellaneous appeal has properly been filed and rejected the objection raised by the Stamp Reporter as baseless. Mr. V. Shivnath submitted that the said order dated 20.5.2004 was passed in the absence of the respondents -and, thus, the said objection could not be raised. The objection of Mr. Shivnath prima facie appears to be correct. In the circumstances, place this matter before the Honble the Acting Chief Justice for referring it to an appropriate Division Bench for deciding the question of maintainability of this appeal. ;