Orissa High Court
Bhagyabati Panda vs Dharanidhar Rout & Others on 8 January, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.118 of 2023
In the matter of an Appeal under Section 100 of the Code of Civil
Procedure assailing order dated 07.02.2023, passed by the learned District
Judge, Khurda at Bhubaneswar in R.F.A. No.164 of 2022.
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Bhagyabati Panda .... Appellant
-versus-
Dharanidhar Rout & Others .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr. Gouri Mohan Rath
Advocate
For Respondents - Mr. Sahasransu Sourav
Advocate for R-1
Mr. P. K. Rath,
Senior Advocate for R-2 & 3
CORAM:
MR. JUSTICE D.DASH
DATE OF HEARING :30.11.2023 :: DATE OF JUDGMENT:08.01.2024
Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code
of Civil Procedure, 1908 (for short, 'the Code'), has assailed an order dated
07.02.2023, passed by the learned District Judge, Bhubaneswar in R.F.A.
No.164 of 2022.
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The Appellant by filing an Appeal under section 96 of the Code had
assailed the judgment and decree dated 30.04.2018 & 04.05.2018
respectively passed by the learned Civil Judge, Senior Division,
Bhubaneswar in Civil Suit No.790 of 2010. There being delay in filing the
said Appeal, the present Appellant along with the Memorandum of Appeal
had filed an application under section 5 of the Limitation Act for condoning
the delay in filing the Appeal. The said application for condonation of delay
has been rejected by the order dated 07.03.2023, which has been impugned in
this Appeal.
2. Background facts necessary for the purpose of the present Appeal are
that:-
The Respondent No.1 as the Plaintiff had filed Civil Suit No.790 of
2007 in the Court of Civil Judge, Senior Division, Bhubaneswar arraigning
the Predecessor-in-interest of the Respondent No.2, 3 & 4 namely, Jiban Das
as the sole Defendant. The suit was for specific purpose of contract. During
pendency of the said suit, the Respondent No.5 was added as Defendant
No.2, which stood decreed by judgment dated 30.04.2018 followed by the
decree dated 04.05.2018.
Said sole Defendant in the suit namely, Jiban Das since had sold the
suit land to the present Respondent No.5 by two registered sale deeds dated
01.10.2011, the present Respondent No.5 had been arraigned therein as
Defendant No.2 during the Trial.
The suit (C.S. No.790/2007) thus having been decreed by judgment
dated 30.04.2018 followed by the decree dated 04.05.2018, the present
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Appellant has appeared as a purchaser of the very suit land from the
Respondent No.5, who was the Defendant No.2 in the said suit. She is
claiming the suit land to have been purchased by her on 04.08.2022 and it is
said that she had paid full agreed consideration to the Respondent No.5
(Defendant No.2) and has got the delivery of possession of the suit land in
her favour.
The Appellants having purchased the suit land during the mid of the
year 2022 when the judgment and decree had been passed in civil suit
no.790 of 2007 passed on 30.04.2018 and 04.05.2018 respectively were
holding the field for all these years by them; she filed the First Appeal
questioning those judgment and decree which have been passed more than
four years prior to the purchase of the suit land. The delay in filing the
Appeal is about 3 years 8 months and 14 days and that is sought to be
condoned on the projected ground of the illness of the present Appellant
which has been refused.
3. The Appeal has been admitted to answer the following substantial
question of law:-
"Whether the First Appellate Court on the totality of the facts and
circumstances of the case is rightly refusing to condone the delay in
filing the Appeal by the present Appellant?"
4. Heard Mr. Gouri Mohan Rath, learned Counsel for the Appellant, Mr.
Sahasransu Sourav, learned Counsel for the Respondent No.1 & Mr. P. K.
Rath, learned Counsel for the Respondent No.2 & 3 at length.
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5. I have gone through the order which has been impugned in this
Appeal and have carefully perused the case record.
6. Undisputed position stands that the Appellant was not in picture vis-à-
vis the suit land at any point of time during the suit; right from the time of its
institution till disposal by passing of the judgment and decree. The person
from whom this Appellant claims to have purchased the suit land under two
registered sale deeds and according to him, on payment of valuable
consideration followed by delivery of possession was however very much a
party to the suit; even though he was a lispendence purchaser of the suit land
from the sole Defendant namely, Jiban Das. So on the face of the judgment
and decree passed in the Civil Suit instituted by the Respondent No.1 as the
Plaintiff wherein the vendor's vendor of the present Appellant and his
vendors were the party, this Appellant having purchased the property long
after the passing of the judgment and decree do not at all satisfy the basic
criteria for preferring an Appeal in challenging the judgment and decree
passed in Civil Suit as standing in the category of the 'Person-Aggrieved'.
The Appellant is not even a lispendence purchaser but is a purchaser from
the person, who was then very much under the sufferance of the judgment
and decree passed in civil suit running against him and who had not even
questioned those judgment and decree by filing Appeal which by then had
attained finality. The purchase of the Appellant is thus seen to be one in
simply taking a chance to pursue the litigation further when by that time the
result in the litigation remaining unquestioned by the parties aggrieved had
attained finality. Thus the Appellant being a purchaser from the judgment
debtor even if it is said that the judgment debtor executed the registered sale
deed in respect of the suit properties in her favour, those puts her no where
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except to be under the sufferance of the said judgment and decree which he
had even no right to question and get annulled as her vendor, who was very
much under the sufferance of the decree had surrendered to the same and
accepted as those stood then.
Thus, the Appellant while filing the Appeal since had no right of
Appeal, her application for condonation of delay in filing the Appeal has no
base to stand on. Therefore, without even going to the question as to the
existence of the sufficient cause standing on the way of the Appellant to file
the Appeal in time, the decision rendered by the First Appellate Court in
refusing to condone the delay is bound to stand. In fact, the Appellant on her
own saying was having no right over the property by virtue of her so called
purchase on the face of the judgment and decree passed in the suit which had
attained finality as against her vendor and her vendor's vendor.
In the wake of aforesaid, the answer to the substantial question of law
receives its answer against the present Appellant. The order impugned in this
Appeal thus stands confirmed.
7. The Appeal is accordingly dismissed with costs throughout.
(D. Dash),
Judge.
Gitanjali
Designation: Junior Stenographer
