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Orissa High Court
Lohita Rout And Others vs Suresh Chandra Rout on 19 December, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 92 of 2025
Lohita Rout and Others ..... Appellants
Nihar Ranjan Mohanty, Advocate
-Versus-
Suresh Chandra Rout ..... Respondent
Mr. Dibyakanta Dash, Advocate
CORAM:
THE HON'BLE MR. JUSTICE SASHIKANTA MISHRA
ORDER
19.12.2025
I.A. No. 245 of 2025
Order No. 1. This matter is taken up through hybrid mode.
04 2. This is an application filed by the appellants seeking condonation
of delay in filing the second appeal. Office has pointed out delay of 452
days.
3. It is stated in the application that after passing of the impugned
judgment by the First Appellate Court on 04.08.2023, the appellants
filed a review before the said Court being Review Misc. Case No. 59 of
2023. Said Review application was disposed of on 14.11.2024.
4. The respondent has filed an objection. It is stated that the Review
was filed on baseless grounds, which was dismissed by the reviewing
Court specifically holding that it was an abuse of the process of Court.
5. Heard Mr. A.C. Panda, learned counsel for the appellants and Mr.
Dibyakanta Dash, learned counsel for the respondent.
6. Mr. Panda would argue that since the appellants were diligently
prosecuting the review application, they are entitled to the benefit under
Section 14 of the Limitation Act. As such, there is no delay in filing of
the second appeal.
7. Mr. Dash, on the other hand, would submit that the intention of the
appellants is to cause delay in the matter and prevent the respondent
from enjoying the fruits of the decree passed in his favour. He further
submits that initially the appellants had filed first appeal (RFA No. 153
of 2014) before this Court against the judgment of the trial Court,
which was remanded to the First Appellate Court for adjudication. Said
judgment was passed against a dead respondent. Review application
was filed by the appellants (RVWPET No. 267 of 2019) before this
Court disputing the date of death and by producing a fraudulent
certificate. This Court, by order dated 01.11.2021 disposed of the
review application by directing investigation by Crime Branch.
Accordingly, a criminal case was also registered. The appellants
preferred Special Leave Petition before the Supreme Court, which was
also dismissed. They thereafter, preferred RFA No. 43 of 1999, which
was dismissed. Again, the appellants have filed Review, which was
dismissed. Therefore, the appellants are not entitled to the benefit under
Section 14 of the Limitation Act.
8. Section 14 of the Limitation Act is as follows:
"14. Exclusion of time of proceeding bona fide in court without
jurisdiction.
(1) In computing the period of limitation for any suit the time during
which the plaintiff has been prosecuting with due diligence another
civil proceeding, whether in a court of first instance or of appeal or
revision, against the defendant shall be excluded, where the
proceeding relates to the same matter in issue and is prosecuted in
good faith in a court which, from defect of jurisdiction or other cause
of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time
during which the applicant has been prosecuting with due diligence
another civil proceeding, whether in a court of first instance or of
appeal or revision, against the same party for the same relief shall be
excluded, where such proceeding is prosecuted in good faith in a
court which, from defect of jurisdiction or other cause of a like nature,
is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the
Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-
section (1) shall apply in relation to a fresh suit instituted on
permission granted by the court under rule 1 of that Order, where
such permission is granted on the ground that the first suit must fail
by reason of a defect in the jurisdiction of the court or other cause of
a like nature.
Explanation.--For the purposes of this section, --
(a) in excluding the time during which a former civil proceeding was
pending, the day on which that proceeding was instituted and the day
on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to
be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a
cause of a like nature with defect of jurisdiction."
9. It is thus, evident that if a party has pursued remedy before a
wrong forum, then the period spent in prosecuting such application can
be excluded.
10. From the facts narrated, it is evident that Section 14 would have
no application to the facts of the case inasmuch as, as per Code of Civil
Procedure, the remedy available to a party aggrieved by the judgment
of the First Appellate Court is to prefer Second Appeal before this
Court under Section 100 of CPC. Review is not the statutory remedy
available against judgment passed by the First Appellate Court under
Section 96 of CPC. Review is sought for on the specific grounds
enumerated under Section 114 read with Order XLVII of CPC.
Therefore, merely by filing an application for review cannot stop the
period of limitation from running. Moreover, the review application
was filed on untenable grounds which prompted learned Court below to
hold that the same is nothing short of an abuse of the process of the
Court. It therefore, cannot be treated as a bonafide prosecution of a
litigation in a Court without jurisdiction.
11. Apart from stating that the delay was caused due to prosecution of
the review application, which this Court does not accept, no other
ground is cited to explain the delay caused in filing the appeal. This
Court therefore, finds no justified reason to condone the delay.
12. The I.A. is therefore, dismissed. Consequently, the second appeal
is also dismissed.
(Sashikanta Mishra)
A.K. Rana Judge
