Gauhati High Court
Page No.# 1/5 vs Smt. Sandhya Rani Roy And 4 Ors on 10 February, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/5
GAHC010059712023
2025:GAU-AS:1383
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/121/2024
PABITRA BORA AND 2 ORS
S/O LATE MOHAN BORA, RESIDENT OF VILL. CHOTHA HAIBOR,
NAZIRANJAN, MAUZA- NIZ-SAHAR, PIN- 782003, P.O. AND P.S.- NAGAON
SADAR, DISTRICT- NAGAON, ASSAM.
2: SMT. PUNYA PRABHA BORA
D/O LATE MOHAN BORA
RESIDENT OF VILL. CHOTHA HAIBOR
NAZIRANJAN
MAUZA- NIZ-SAHAR
PIN- 782003
P.O. AND P.S.- NAGAON SADAR
DISTRICT- NAGAON
ASSAM.
3: SMT. PIKUMONI @ PINKI BORA
D/O LATE MOHAN BORA
RESIDENT OF VILL. CHOTHA HAIBOR
NAZIRANJAN
MAUZA- NIZ-SAHAR
PIN- 782003
P.O. AND P.S.- NAGAON SADAR
DISTRICT- NAGAON
ASSAM
VERSUS
SMT. SANDHYA RANI ROY AND 4 ORS
W/O SRI HARI CHARAN ROY, RESIDENT OF VILL.- MILANPUR, ADARSHA
NAGAR, NEAR NAMGHAR, PIN- 782001, P.O. AND P.S. - NAGAON SADAR,
DISTRICT- NAGAON, ASSAM.
2:SRI BISWA BIPUL BORA
S/O LATE MOHAN BORA
Page No.# 2/5
RESIDENT OF VILL. CHOTHA HAIBOR
NAZIRANJAN
MAUZA- NIZ-SAHAR
PIN- 782003
P.O. AND P.S.- NAGAON SADAR
DISTRICT- NAGAON
ASSAM.
3:SMT. GITANJALI BORA
D/O LATE MOHAN BORA
RESIDENT OF VILL. CHOTHA HAIBOR
NAZIRANJAN
MAUZA- NIZ-SAHAR
PIN- 782003
P.O. AND P.S.- NAGAON SADAR
DISTRICT- NAGAON
ASSAM.
4:SMT. TARULATA BORA
D/O LATE MOHAN BORA
RESIDENT OF VILL. CHOTHA HAIBOR
NAZIRANJAN
MAUZA- NIZ-SAHAR
PIN- 782003
P.O. AND P.S.- NAGAON SADAR
DISTRICT- NAGAON
ASSAM.
5:SMT. MAMONI BORA
D/O LATE MOHAN BORA
RESIDENT OF VILL. CHOTHA HAIBOR
NAZIRANJAN
MAUZA- NIZ-SAHAR
PIN- 782003
P.O. AND P.S.- NAGAON SADAR
DISTRICT- NAGAON
ASSAM
Advocate for the petitioner(s): Mr. SD Purkayastha
Advocate for the respondent(s): X X
Page No.# 3/5
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
ORDER
10.02.2025
Heard Mr. SD Purkayastha, the learned counsel appearing on behalf of the
petitioners.
2. The petitioners herein has approached this Court by challenging the order
dated 29.04.2022 passed in M.J.No.01/2020 by the Court of the learned Civil
Judge Nagaon whereby the application filed for condonation of delay in
preferring the appeal against the judgment and decree dated 26.11.2018
passed by the Court of the learned Munsiff No.2 Nagaon in Title Suit
No.162/2015 was rejected.
3. It is a well settled principle of law that when an application under Section 5
of the Limitation Act 1963 is rejected, the consequential effect thereof is that
the learned Appellate Court cannot take on board the First Appeal so prepared.
The Supreme Court in the case of Shyam Sundar Sarma Vs. Pannalal
Jaiswal And Others reported in AIR 2006 SC 226 had categorically
observed that when a decision is given on the merits by the learned trial court
and the matter is taken in appeal and the appeal is dismissed on some
preliminary ground like limitation or default in printing, it must be held that such
dismissal amounts to confirmation of the decision of the trial court on the merits
Page No.# 4/5
itself amounts to the appeal being heard and finally decided on the merits
whatever may be the ground for dismissal of the appeal.
4. Taking into account the above, when an application filed under Section 5 of
the Limitation Act 1963 was rejected, the learned First Appellate Court have
confirmed the judgment and decree passed by the learned Trial Court which
would be a decree. Accordingly, an appeal has to be preferred in terms with
Section 100 of the Code of Civil Procedure, 1908 (for short, the Code) against
the judgment and decree passed by the learned Trial Court, which was
confirmed by the learned Appellate Court. Consequently, therefore, this Court is
of the view that the petitioners have wrongly approached this Court by invoking
the jurisdiction under Section 115 of the Code.
5. Accordingly, the instant revision petition stands dismissed on the ground of
maintainability. It is, however, observed that the dismissal of the instant petition
shall not preclude the petitioners from preferring an appeal under Section 100
of the Code, if so advised.
6. This Court further taking into account that the petitioners have been
pursuing the proceedings diligently, excludes the period from 15.03.2023 till
date while computing the period of limitation, if an appeal under Section 100 of
the Code is preferred.
7. With the above, the revision petition stands disposed of.
Page No.# 5/5
JUDGE
Comparing Assistant
