Tripura High Court
Sri Dipak Chandra Sarkar And Another vs Sri Sunil Chandra Sarkar And Others on 31 May, 2024
Page 1 of 9
HIGH COURT OF TRIPURA
AGARTALA
RSA No.21 of 2024
Sri Dipak Chandra Sarkar and another
...... Appellant(s)
VERSUS
Sri Sunil Chandra Sarkar and others
...... Respondent(s)
For Appellant(s) : Mr. Somik Deb, Senior Advocate.
Mr. P. Chakraborty, Advocate.
For Respondent(s) : None.
HON'BLE MR. JUSTICE S.D. PURKAYASTHA
_O_R_D_E_R_
31/05/2024
Heard Mr. Somik Deb, learned senior counsel assisted by
Mr. P. Chakraborty, learned counsel for the appellants.
[2] Mr. Somik Deb, learned senior counsel submits that
initially one Sunil Chandra Sarkar instituted T.S. No. 32 of 1979 for
declaration of his right, title and interest and for recovery of
possession against one Manik Sarkar, wherein predecessor of the
present appellants namely, Suresh Chandra Sarkar was made a
pro-defendant. The said suit was partly decreed in favour of Sunil
Chandra Sarkar and thereafter, against the same the principal
defendant Manik Sarkar as well as proforma defendants Suresh
Chandra Sarkar and Ajit Sarkar preferred Title Appeal No.36 of
1998 and the plaintiff Sunil Chandra Sarkar also preferred one cross
objection and both the appeal and cross objection were disposed of
by a judgment dated 18.05.1989 whereby cross objection was
allowed and the appeal of the defendants was dismissed. Then, one
second appeal was preferred before this Court by all the three
defendants and the matter was remanded to the trial court for fresh
decision after holding local investigation.
[3] According to Mr. Deb, learned senior counsel, thereafter,
the trial court dismissed said T.S. No. 32 of 1979 on 23.08.2005
and then, said Sunil Chandra Sarkar preferred Title Appeal No.03 of
2006 in the Court of learned Additional District Judge, Sonamura
and said appeal was allowed by the Court granting declaration of
right, title and interest of Sunil Chandra Sarkar and also recovery of
possession in respect of a part area of 0.12 acre of Plot No.1043
pertaining to Khatian No.500 of Mouja- Nabadwip Chandra Nagar.
Thereafter, second appeal bearing No.RSA 20 of 2007 was filed by
said defendant No.1, Manik Sarkar and defendant No.3, Ajit Sarkar.
It is also pointed out by learned senior counsel that while the
matter was remanded to the trial court by this Court, said Suresh
Chandra Sarkar had already died but his legal representatives were
not substituted and the suit continued against a dead person
culminating to passing of a decree against a dead person which was
even affirmed by the learned Additional District Judge, Sonamura
and in the second appeal, this Court also affirmed the judgment of
the learned First Appellate Court and in second appeal also the legal
representatives of late Suresh Chandra Sarkar were not impleaded
or substituted.
[4] Mr. Deb, learned senior counsel further submits that said
Sunil Chandra Sarkar thereafter filed a execution case bearing
No.EX(T) 03 of 2015 in the Court of the learned Civil Judge, (Junior
Division), Court No.1, Sonamura. In that case, the legal
representatives of late Suresh Chandra Sarkar i.e. present
appellants submitted a petition under Order XXI Rule 97 and 99
CPC which was numbered as Civil Misc. 08 of 2015 and was
rejected by order dated 30.11.2021. Against said rejection order,
the legal representatives of said late Suresh Chandra Sarkar
preferred a civil revision before this Court vide No.CRP 34 of 2022
which was dismissed by judgment dated 31.07.2023 holding that
the petitioners were not the third party stranger in the lis.
Thereafter, the said legal representatives of late Suresh Chandra
Sarkar preferred a Title Appeal No.12 of 2023 before the Court of
learned District Judge, Sepahijala, Sonamura along with a petition
filed under Section 14 of the Limitation Act for exclusion of time in
preferring that appeal which was dismissed by the impugned order
dated 08.04.2024 in Civil Misc. (Condo) 15 of 2023 and against said
rejection order the present appeal has been preferred.
[5] Mr. Deb, learned senior counsel to support his
submission that the regular second appeal is maintainable in view
of provision of Rule 103 of Order XXI, CPC read with Section 100
CPC, submits that though the petition for exclusion of limitation
period was dismissed, it has its effect in the decision of the main
appeal and therefore, it was ultimately a decision in the appeal
bearing No.Title Appeal 12 of 2023 and as such the regular second
appeal is maintainable. In support of his submission, learned senior
counsel relied on a decision of Hon'ble Supreme Court in Shyam
Sundar Sarma vs. Pannalal Jaiswal & Ors. [(2005) 1 SCC
436] and more particularly Para No.10 of the judgment. Learned
Senior Counsel also relied on another decision of full Bench of
Kerala High Court in Thambi vs. Mathew & Anr. [1987 SCC
OnLine Ker 99].
[6] Mr. Deb, learned senior counsel submits that in the
present execution petition bearing No.EX(T) 03 of 2015, order has
been passed for execution of that decree and the date for that
purpose is fixed today itself.
[7] Regarding exclusion of limitation period during Covid 19
phase, learned senior counsel also relied on another decision of
Hon'ble Supreme Court in Cognizance for Extension of
Limitation, In RE [(2022) 3 SCC 117] particularly Paragraphs
No.5 to 5.4 of the said decision. Learned senior counsel also
submits that some period was consumed by filing revision petition
in wrong forum by preferring CRP No. 34 of 2022. According to
learned senior counsel, when an order passed under the provision
of Order XXI Rule 97 and 99 was an appealable order, in that case,
exercising of jurisdiction by this Court under Section 115 of CPC
itself was beyond the jurisdiction and therefore, the present
appellants were entitled to get said period excluded from
computation of limitation. Learned senior counsel however, informs
the Court that against the said final order of CRP, no further
challenge was made in any higher forum but according to him,
when the Court itself lacks in jurisdiction, any order passed itself is
non-est in the eye of law. Learned senior counsel also referred to an
additional written statement submitted by Manik Sarkar and Ajit
Sarkar in the original suit informing that Suresh Chandra Sarkar
died long ago and in spite of that his legal representatives were not
substituted and both the trial court and First Appellate Court
continued to dispose of the matter without impleading them.
Learned senior counsel also referred to a decision of Hon'ble
Supreme Court in Gurnam Singh (Dead) Through Legal
Representatives & Ors. vs. Gurbachan Kaur (Dead) by Legal
Representatives [(2017) 13 SCC 414] Para 14 to 21 and
submits that any decree passed in that suit or in the appeal are not
binding on the present appellants.
[8] Considered the submission of Mr. Deb, learned senior
counsel and also perused the record.
[9] From the petition submitted before the learned District
Judge, Sonamura, it is found that prayer was made for condoning
delay of 743 days in filing the appeal bearing No.TA 12 of 2023. In
the petition though the relevant provision was mentioned as Section
14 of Limitation Act, 1963 but averments in the contents of the
petition were made that some delay was occasioned due to
pendency of CRP No.34 of 2022 before this Court and also
thereafter, in collecting certified copy of the order of this Court,
absence of Mr. Deb, learned senior counsel from the station and
also absence of one of the appellant from the station, collection of
brief file from the previous learned counsel etc. and according to
the present appellants, the total delay of 743 days in preferring said
appeal was occasioned for these reasons. Thus, it appears that the
condonation for delay was sought both on the ground of proceeding
bona fide in said CRP No.34 of 2022 and also on other grounds as
stated above. Said petition was rejected by an exhaustive order
dated 08.04.2024 by learned District Judge, Sonamura passed in
Civil Misc. (Condo) 15 of 2023 holding that the appellants failed to
show sufficient cause for not preferring the appeal within the
stipulated period. Incidentally, said First Appellate Court also made
certain observations on the merit of the appeal based on the
observations made by this Court in said CRP No.34 of 2022 to the
effect that the petitioner of said revision petition was not a third
party to the original suit.
[10] According to learned senior counsel, based on the said
rejection order dated 08.04.2024, the original appeal bearing No.
TA 12 of 2023 was also not admitted. Learned senior counsel tried
to impress upon the Court that said order dated 08.04.2024 passed
in said Civil Misc. (Condo) 15 of 2023 had direct affect upon the
said TA 12 of 2023 for which said Title Appeal was also not
admitted and was consequently dismissed and therefore, said
impugned order passed in Civil Misc. (Condo) 15 of 2023 is an
appealable order.
[11] In Shyam Sundar Sarma (Supra), Hon'ble Supreme
Court held that a petition under Order IX Rule 13 CPC would not lie
in view of the filing of an appeal against the decree by the appellant
and the dismissal of appeal though for default, since a dismissal for
default or on the ground of it being barred by limitation cannot be
equated with a withdrawal of the appeal. Hon'ble Supreme Court
also took into consideration of the full bench decision of Kerala High
Court in Thambi (Supra) observing that in said case it was held by
the High Court that an appeal presented out of time was never the
less an appeal in the eye of law for all purposes and an order
dismissing the appeal was a decree that could be subject of a
second appeal and introduction of Rule 3A of Order XLI CPC did not
in any way affect that principle.
[12] If for the time being, the argument of Mr. Deb, learned
senior counsel is accepted that the regular second appeal is
maintainable, but on perusal of the record it is found that the
impugned order challenged in TA 12 of 2023 was the order dated
30.11.2021 passed in Civil Misc. 08 of 2015 by the learned
Executing Court and the appeal was preferred in the month of
December, 2023 or thereafter and CRP No.34 of 2022 was
dismissed by this Court on 31.07.2023. In the case Cognizance
for Extension of Limitation, In RE (Supra), Hon'ble Supreme
Court was pleased to exclude the period of limitation from
15.03.2020 till 28.02.2022 and not beyond that. Even if the benefit
of Section 14 of Limitation Act is provided to the appellants, CRP
No.34 of 2022 was already disposed of on 31.07.2023 as indicated
above. The grounds for delay after said date as averred by the
appellants in their petition for condonation of delay before the
learned First Appellate Court was also discussed by the learned First
Appellate Court in the impugned order 08.04.2024. Even if said
grounds for delay in filing said first appeal is taken into
consideration by this Court, no substantial question of law is found
available in favour of the appellants requiring its formulation by this
Court for admitting this appeal. Said CRP No.34 of 2022 was
preferred by the present appellants themselves wherein plea of
death of father of appellants was also raised before this Court and
this Court also observed that the present appellants cannot be
termed as third party or a stranger in the suit to have the benefit of
Order XXI Rule 97 CPC and ultimately, rejected the revision
petition. The present appellants did not challenge that order before
any higher forum and therefore, now they cannot avoid the decision
of the said revision petition stating that the revision petition was
not maintainable and therefore, was not binding on them.
In view of above, no substantial question of law is found
involved in the present appeal and accordingly, the appeal is not
admitted and disposed of.
Communicate copy of this Order to the learned Executing
Court as well as First Appellate Court.
Pending application(s), if any, shall also stand disposed
of.
JUDGE
Rudradeep Digitally signed by RUDRADEEP
RUDRADEEP BANERJEE BANERJEE
Date: 2024.06.01 11:55:21 +05'30'
