HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL REVISION PETITION No.3822 of 2006 Dated 10-3-2015 Between:
Gogireddy Eswara Reddy.
..Petitioner.
And:
Tangirala Hanumayamma.
..Respondent.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL REVISION PETITION No.3822 of 2006 ORDER:
This revision is preferred against the orders dated 12-7-2006 in C.M.A.No.28 of 2005 wherein Second Additional District Judge, Guntur, allowed the appeal filed by the respondent herein by setting aside the order of the lower court dated 23-2-2005 in I.A.No.916 of 2002 in O.S.No.88 of 2002 which is a petition filed to condone delay in filing petition under order 9 Rule 13 C.P.C.
The Judgment of the Second Additional District Judge, Guntur is challenged by the plaintiffs on the ground that remedy of the respondent herein is to file a revision but not an appeal before the District Judge, Guntur.
The objection taken by plaintiffs as to the maintainability of the appeal was negatived by the District Judge and challenging the same, present revision is preferred.
When this matter came up for consideration, it was referred to a Division Bench for authoritative pronouncement, in view of conflicting decisions of two learned single judges of this court whether revision lies or appeal lies against order dismissing petition filed under Section 5 of the Limitation Act.
A Division Bench of this court answered the reference holding that appeal is not maintainable and only revision lies against order dismissing the petition filed under Section 5 of the Limitation Act. Findings of Division Bench are as follows:
“Therefore, the view taken by the learned Single Judge of this Court in Eswaraiah vs. S.A.Gaffoor and other (2 supra) is correct and based on the legal principles. The ratio laid down in Divisional Engineer (Operations), APSEB (Urban), Power House, Nizamabad and others vs. Shaik Mohammed (1 supra) is not in accordance with the provisions of the CPC. Hence, the reference is answered holding that against the Order passed in a petition filed under Section 5 of the Limitation Act, only a revision lies under Section 115 CPC, but not an appeal under Section104 or Order XLIII Rule 1 CPC.”
In view of the findings of the Division Bench, concerning the objection raised by the revision petitioner, the impugned order dated 12-7-2006 is liable to be set aside.
Accordingly, this Civil Revision Petition is allowed and impugned order dated 12-7-2006 in C.M.A.No. 28 of 2005 is set aside giving liberty to respondent to take appropriate legal recourse.
As a sequel to the disposal of this appeal, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 10-3-2015.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL REVISION PETITION No.3822 of 2006 Dated 10-3-2015 Dvs