For vs For
2021 Latest Caselaw 1028 Tri

                        HIGH COURT OF TRIPURA
                              AGARTALA

                            IA No. 01 of 2021
                        in LA App. No. 51 of 2021

For Applicant(s)                 : Mr. A De, Adv.

For Respondent(s)                : Ms. N Chakma Saha, Adv.

HON'BLE MR. JUSTICE S. TALAPATRA

Order 05.10.2021

Heard Mr. A De, learned counsel appearing for the applicant.

In the order dated 28.09.2021 this court had observed that the

applicant has to satisfy this court how a fresh appeal is maintainable against

the same judgment and award after the former appeal has been adjudicated.

The earlier appeal being LA Appeal No. 01/2017 had been

decided on merit. According to Mr. A De, learned counsel appearing for the

applicant, in that appeal one ground could not be taken up by the appellant.

Hence, this appeal has been presented on that ground.

In the considered opinion of this Court, no fresh appeal can be

filed by the appellant, inasmuch as, Order XLI Rule 2 of the CPC clearly lays

down that the appellant shall not, except by leave of the court, urge or be

heard in support of any ground of objection, not set forth in the memorandum

of appeal, but the appellate court, in deciding the appeal, shall not be confined

to the grounds of objections set forth in the memorandum of appeal or taken

by leave of the court under this rule: provided that the Court shall not rest its

decision on any other ground unless the party who may be affected thereby

had sufficient opportunity of contesting the case on that ground.

Even strict stipulations have been made under Order XLI Rule 3

of the CPC in respect of the amendment of the memorandum.

Further, in the considered view of this court, Section 96 of the

CPC has sealed the issue for ever by its unambiguous provision regarding the

appeal or the number of appeals that can be filed from the same judgment

and order. It clearly provides that save where otherwise expressly provided in

the body of the CPC or by any other law for the time being in force, "an

appeal" shall lie from every decree passed by any court exercising original

jurisdiction to the court authorized to hear appeals from the decisions of such

Court.

Therefore, there is no other means to define the word "an appeal"

differently, meaning, from one decree/one judgment only one appeal will lie.

Hence, this court is constrained to observe that when the appeal being LA

Appeal 51/2021 itself is not maintainable this application for condonation

cannot be entertained.

In view of the above, this application stands rejected.

JUDGE

Satabdi