Jharkhand High Court
The State Of Bihar (Now Jharkhand) ... vs Prabhat Kumar Dash & Others on 21 February, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.129 of 2020
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The State of Bihar (now Jharkhand) through the Deputy
Commissioner and Collector of the District of Singhbhum at
Chaibasa (now District West Singhbhum) & Another
.... .... .... Appellants
Versus
Prabhat kumar Dash & Others .... .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Appellants : Mr. Nawal K. Pandey, AC to SC (L &C) I
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Order No.03 Dated- 21/02/2023
Heard the learned counsel for the appellants.
This appeal is fixed to today.
Learned counsel for the appellants submits that the stamp reporter
has raised a preliminary objection regarding the maintainability of the
appeal. It is next submitted by the learned counsel that the appeal has
been preferred against the order dated 17.06.2019 passed by the learned
Principal District Judge, Seraikella-Kharswan being the First Appellate
Court in Title Appeal No.04 of 2016, has rejected the application filed
under Section 5 of the Limitation Act accompanying the First Appeal
memo and has not entertained the First Appeal, the same being barred
by limitation. It is next submitted that the dismissal of an appeal on the
ground of limitation amounts to confirmation of the decree of the trial
court on the merits of the case. Thus, the decree of the trial court gets
merged in the appellate court's decree even when the appeal is
dismissed on a preliminary ground as time barred. The logical sequitur
is that the appeal filed along with an application for condonation of
delay in filing the appeal when dismissed on refusal to condone the
delay, is a decree within the meaning of Section 2 (2) of the Code of
Civil Procedure, 1908. Hence it is submitted that the defect pointed out
in the stamp report be over ruled.
It is pertinent to mention here that the Hon'ble Supreme Court of
India in the case of Shyam Sundar Sharma Vs. Pannalal Jaiswal &
Others reported in (2005) 1 SCC 436 has held 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 a
decision in the appeal and overruled the judgment of judgment
in the case of Ratansingh v. Vijaysingh(2001) 1 SCC 469, by
observing thus in paragraph 10 and 12, which reads as under.
10. The question was considered in extenso by a Full
Bench of the Kerala High Court in Thambi v. Mathew.
Therein, after referring to the relevant decisions on the
question it was held that an appeal presented out of time
was nevertheless an appeal in the eye of the law for all
purposes and an order dismissing the appeal was a decree
that could be the subject of a second appeal. It was also
held that Rule 3-A of Order 41 introduced by Amendment
Act 104 of 1976 to the Code, did not in any way affect that
principle. An appeal registered under Rule 9 of Order 41 of
the Code had to be disposed of according to law and a
dismissal of an appeal for the reason of delay in its
presentation, after the dismissal of an application for
condoning the delay, is in substance and effect a
confirmation of the decree appealed against. 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 a decision in the appeal.
12. Learned counsel placed reliance on the decision in
Ratansingh v. Vijaysingh rendered by two learned Judges
of this Court and pointed out that it was held therein that
dismissal of an application for condonation of delay would
not amount to a decree and, therefore, dismissal of an
appeal as time-barred was also not a decree. That decision
was rendered in the context of Article 136 of the Limitation
Act, 1963 and in the light of the departure made from the
previous position obtaining under Article 182 of the
Limitation Act, 1908. But we must point out with respect
that the decisions of this Court in Mela Ram and Sons and
Sheodan Singh were not brought to the notice of Their
Lordships. The principle laid down by a three-Judge Bench
of this Court in Mela Ram and Sons and that stated in
Sheodan Singh was, thus, not noticed and the view
expressed by the two-Judge Bench, cannot be accepted as
laying down the correct law on the question. Of course,
Their Lordships have stated that they were aware that
some decisions of the High Courts have taken the view that
even rejecting an appeal on the ground that it was
presented out of time is a decree within the definition of a
decree obtaining in the Code. Thereafter, noticing the
decision of the Calcutta High Court above-referred to, Their
Lordships in conclusion apparently agree with the decision
of the Calcutta High Court. Though the decision of the Privy
Council in Nagendra Nath Dey v. Suresh Chandra Dey was
referred to, it was not applied on the ground that it was
based on Article 182 of the Limitation Act, 1908, and there
was a departure in the legal position in view of Article 136
of the Limitation Act, 1963. But with respect, we must
point out that the decision really conflicts with the ratio of
the decisions in Mela Ram and Sons and Sheodan Singh
and another decision of this Court rendered by two learned
Judges in Rani Choudhury v. Lt.-Col. Suraj Jit Choudhury.
In Essar Constructions v. N.P. Rama Krishna brought to our
notice, two other learned Judges of this Court left open the
question. Hence, reliance placed on that decision is of no
avail to the appellant. (Emphasis supplied)
Considering the aforesaid facts, the objection raised by the stamp
reporter regarding the maintainability of the Second Appeal is overruled.
Registry is directed to furnish fresh stamp reporting within one
week from the date of this order.
List this appeal after stamp reporting is made.
Animesh/ (Anil Kumar Choudhary, J.)
