M/S. Shivom Minerals Ltd vs M/S. Bajrang Metalics Ltd
2023 Latest Caselaw 11933 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                             R.S.A. No.238 of 2022

            M/s. Shivom Minerals Ltd.                 ....             Appellant
                                                    Mr.P.K. Rath, Sr. Advocate


                                         -versus-
            M/s. Bajrang Metalics Ltd.                ....         Respondent
                                                    Mr. P.K. Nayak, Advocate.

                      CORAM:
                      MR. JUSTICE D.DASH

                                        ORDER

04.10.2023

R.S.A. No.238 of 2022 & Order No. I.A. No.922 of 2023

07. 1. This matter is taken up through hybrid arrangement (virtual/physical) mode.

2. The Appellant-Company, by filing this Appeal under section 100 of the Code of Civil Procedure (in short, 'the Code') has assailed the judgment and decree passed by the learned First Additional District Judge, Rourkela in RFA No.30 of 2016.

The First Appellate Court had been moved under section- 96 of the Code by the Respondent-Company as the aggrieved Plaintiff since their suit, i.e., Civil Suit No.166 of 2008 in the Court of the Civil Judge (Sr. Division), Rourkela was decreed in part.

3. The Appellant having presented the Memorandum of Second Appeal before this Court on 29.09.2022 and thus there being a delay of 1765 days (four years and ten months), an application under section 5 of the Limitation Act for condonation of delay has been filed.

// 2 //

Fact however stands that this Appellant had earlier filed an application for review of the judgment and decree passed in the First Appeal and that having been rejected; this Second Appeal has been filed thereafter.

4. Upon hearing Mr. P.K. Rath, learned Senior Counsel for the Appellant-Company and Mr. P.K. Nayak, learned counsel for the Respondent-Company and on going through the averments taken in the petition for condonation of delay in filing this Appeal, this Court finds that the following important legal points arise for determination for disposal of this Application having the bearing on further progress of the Second Appeal:-

(i) Whether the Appellant having filed a petition under section 47 of the Code to review the judgment and decree passed in First Appeal under section-96 of the Code can again when present an Appeal under section-100 of the Code?

(ii) Whether the Appellant can by filing this Appeal under section-100 of the Code after disposal of the review petition by the First Appellate Court seek exemption of that period spent after review in seeking condonation of delay?

5. Having further heard learned counsel for the parties, the hearing being concluded; judgment is reserved.

(D. Dash) Judge Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Himansu Location: OHC Date: 10-Oct-2023 11:53:20