The present appeal from order has been filed against the judgment and order dated 05.10.1999, by which the application for restoration as well as the application under Section 5 of the Limitation Act has been rejected.
The facts arising out of the present appeal are that a partition Suit No. 50 of 1961 was filed by the respondent No.1 Smt. Angoori Devi. The said suit was decreed. The final decree was also prepared on 23.10.1981. The said decree has attained finality and has not been challenged in any court of law. During pendency of suit, a receiver was appointed, which was discharged on an application made by Smt. Angoori Devi vide order dated 13.03.1984. After disposal of the suit, the appellant against order dated 13.03.1984 preferred Misc. Appeal No. 293 of 1994 under Order 43, Rule 1(s) C.P.C. which was dismissed on 17.04.1996 for want of prosecution. Thereafter, a restoration application with an application for condonation of delay was filed, which was rejected by order dated 05.10.1999 by rejecting delay condonation application. This order has been challenged before this Court.
A preliminary objection was taken on behalf of the respondents that Misc. Appeal No. 293 of 1994, filed before District Judge, under Order 43 Rule 1(s) itself was not maintainable because under said provision only appeal provided is against the order passed under Order 40 Rule 1/4 C.P.C.. The order dated 13.03.1984, challenged in misc. appeal, was not an order under Order 40 Rule 1/4 C.P.C.. It was an order discharging receiver after disposal of the suit, therefore, the appeal before District Judge itself was not maintainable. The appeal filed before District Jude was an appeal under Order 43, Rule 1(s) C.P.C., therefore, no further appeal is contemplated against such order. Order 43 is enacted under Section 104 C.P.C.. Section 104(2) C.P.C. creates a bar for institution of further appeal against an order passed in an appeal under Order 43 C.P.C. because appeals against Order 43 are appeal against order and not against decree, hence the bar under Section 104(2) C.P.C. will apply. The misc. appeal was filed by incompetent person who was having no power of attorney of the appellants. The District Judge has also recorded a finding that even the vakalatnama of the appeal was not on record and, therefore, the appeal itself is incompetent. The appellant has already died in 1991, hence no restoration application was maintainable. Once appeal against final order i.e. under Order 43 Rule 1(s) C.P.C. is not permitted and barred by Section 104(2) C.P.C., no appeal will lie before this Court against an order rejecting delay condonation application in support of restoration application filed in such appeal.
Learned counsel for the respondents has placed reliance upon paras 39 & 43 of the judgment reported in (1981) 4 Supreme Court Cases 8 Shah Bbulal Khimji vs. Jayaben D. Kania and another, which is being quoted below:-
39. With due deference to the Hon'ble Judges we are of the opinion that the decision of the Allahabad High Court on this point is based on a serious misconception of the legal position. It is true that s. 104 was introduced by the Code of 1908 and the aforesaid section, as we have already indicated, clearly saved the Letters Patent jurisdiction of the High Court. From this, however, it does not necessarily follow that the restriction that there is no further appeal from the order of a Trial Judge to a larger Bench would be maintainable or permissible. In the first place, once s. 104 applies and there is nothing in the Letters Patent to restrict the application of s. 104 to the effect that even if one appeal lies to the Single Judge, no further appeal will lie to the Division Bench. Secondly, a perusal of clause 15 of the Letters Patent of the Presidency High Courts and identical clauses in other High Courts, discloses that there is nothing to show that the Letters Patent ever contemplated that even after one appeal lay from the subordinate court to the Single Judge, a second appeal would again lie to a Division Bench of the Court. All that the Letters Patent provides for is that where the Trial Judge passes an order, an appeal against the judgment of the said Trial Judge would lie to a Division Bench. Furthermore, there is an express provision in the Letters Patent where only in one case a further or a second appeal could lie to a Division Bench from an appellate order of the Trial Judge and that is in cases of appeals decided by a Single Judge under s. 100 of the Code of Civil Procedure. Such a further appeal would lie to a Division Bench only with the leave of the court and not otherwise. The relevant portion of cl. 15 of the Letters Patent may be extracted thus:
"And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, Fort William in Bengal from the judgment.. Of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, made (on or after the first day of February, 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal."
43.Thus, in these two cases it was clearly held that where a Trial Judge had passed an order in an appeal against an order passed by the district judge under order 43 Rule 1, a further appeal under the Letters Patent was not maintainable. This view is fully supported by the express language in which clause 15 of the Letters Patent has been couched, as referred to above. Thus the latter decision of the Allahabad High Court in Ram Sarup's case (supra) was clearly wrong in holding that an appeal under the Letters Patent would lie even against an appellate order of the Trial Judge passed under O.43, R. 1 even though it was prohibited by s. 104 (2) of the Code.
Further reliance has been placed upon para 3, 4 & 5 of the judgment reported in AIR 2002 Allahabad 113; Rameshwar Nath Sinha v. Narsingh Sahai, which show that against a final order passed in a revision, no appeal lies. Even a revision will not lie in view of the decision of the Full Bench of this Court reported in AIR 1979 Alld. 218. As such, it is not conceivable that even though an appeal does not lie against the final order in the revision, an appeal would lie against an interlocutory order disposing of an application under Order 22, Rule 10 C.P.C. in a revision.
Further reliance has been placed upon para 42 & 43 of the judgment reported in 2006 (4) ADJ 728; Mohd. Tahir Khan v. Mohd. Yunus Khan and others, which is being quoted below:-
"42. Now suppose an Appellate Court while dealing with an Appeal filed under Section 104(1) read with Order XLIII, Rule 1 of the Code of Civil Procedure against an order passed by the Trial Court in a pending Suit, passes an order, and such order passed by the Appellate Court in such an Appeal is covered under any of the Clauses (a) to (w) of Rule 1 of Order XLIII of the Code of Civil Procedure, then the question arises as to whether any further Appeal against such an order of the Appellate Court may be filed under Section 104(1) read with Order XLIII, Rule 1 of the Code of Civil Procedure.
43. The answer to the said question is provided by sub-section (2) of Section 104 of the Code of Civil Procedure which lays down that "no Appeal shall lie from any order passed in Appeal under this Section"."
Learned counsel for the respondents has also placed reliance upon various other judgments i.e.-
(1) 2008 (3) ADJ 275; Kaptan Singh and others v. Jagdish Singh and another. Relevant is para 7 to 12.
(2) 1984 ALL. L.J. 145; Subedar and others v. Ram Kunwari and others. Relevant is para 7.
(3) JT 2004 (8) SC 464; P.S. Sathappan (Dead) by LRs v. Andhra Bank Ltd. & Ors.. Relevant is para 113 & 150.
(4) (2004) 8 Supreme Court Cases 724; Chandi Prasad and others v. Jagdish Prasad and others. Relevant is para 10, 22, 23, 24 & 28.
(5) (1996) 1 Supreme Court Cases 49; Resham Singh Pyara Singh v. Abdul Sattar. Relevant is para 5 & 6.
On the other hand, learned counsel for the appellants has submitted that order rejecting application under Section 5 of Limitation Act filed in support of restoration application amounts to rejection of appeal, as such, the appeal itself is maintainable. He has placed reliance upon a judgment reported in AIR 2005 Supreme Court 226; Shyam Sunder Sarma v. Pannalal Jaiswal and others and JT 2004 (8) SC 464; P.S. Sathappan (Dead) by LRs v. Andhra Bank Ltd. & Ors. Section 96 C.P.C. creates a substantive right for appeal from every decree. The procedure of such appeals is provided under Order 41 C.P.C.. Order 41 Rule 19 provides for readmission of appeal dismissed in default. Order 41 Rule 21 provides for rehearing of appeal, where the same has been decided ex parte. These are analogous to provisions of Order 9 Rule 9 and Order 9 Rule 13 C.P.C. which respectively provided for restoration of suit dismissed in default and for setting aside an ex parte decree to enable the decision on merit after hearing the defendants. Against the order of the trial court under Order 9 Rule 9 or 13 C.P.C. or order of appellate court under Order 41 Rule 19 or 21 rejecting restoration of suit or refusing to readmit and rehear, an appeal can be preferred under Section 104 C.P.C. read with Order 43 Rule (1)(c) or (1)(d) or (1)(t) C.P.C., as the case may be. Section 104 (2) provides that no appeal shall lie from any order passed in appeal under this section. Thus a second appeal is prohibited against the appellate order. Section 106 C.P.C. provides that an appeal against an order made by trial court shall lie to the court to which an appeal would lie from the decree in the suit and if the order is made in exercise of appellate jurisdiction that appeal would lie to High Court.
As regards the preliminary objection raised on behalf of the respondents regarding maintainability of the appeal, learned counsel for the appellants submits that order impugned has been passed rejecting application under Section 5 of the Limitation Act. The misc. appeal which was sought to be readmitted was itself an appeal under Order 43 Rule 1(s) C.P.C. and the order refusing to readmit the same is not appealable in view of Section 104(2). Learned counsel for the appellants submits that if the argument of the respondents is accepted, then word "appeal" appearing in clause (t) of Rule (1) of Order 43 must be read as "appeal not being an appeal against an order" or "appeal against original decree". It is settled in law that while reading a provision no word should be added or ignored and plain meaning should be given to the words used in the provision. Further, clause (t) relates to any order passed by appellate court, hence necessarily an appeal against it will lie in the nature of appeal to second highest appellate authority, which is clear from provisions of Section 106. Clause (t) of Order 43 Rule 1(1) covers all appeals whether filed under Section 96, 100 or 104 which is apparent from the scheme of Order 43 where rejection of restoration application in case of suits by clause (c), (d) and (n) has been made appealable in a case open to appeal, but no such limitation has been placed in clause (t) that said appeal is confined only to cases open to further appeal. The restoration proceeding are not in continuation of appeal, which has already been concluded and stand disposed off. The restoration application is independent and separate proceeding. There is no merger of orders passed in appeal and the orders passed on restoration application. The cases cited by respondents is not applicable to the present case, therefore, learned counsel for the appellants submits that appeal against Order 43 Rule 1(t) is maintainable being saved by Section 104(1) and Section 104(2) do not apply to it. He has placed reliance upon para 9, 10 & 12 of the judgment of the apex court reported in AIR 2005 Supreme Court 226; Shyam Sunder Sarma v. Pannalal Jaiswal and others, which is being quoted below:-
"9. The specific question involved, came to be considered by this Court in Messrs Mela Ram and Sons v. The Commissioner of Income Tax, Punjab, (1956 SCR 166). This Court held that an appeal presented out of time is an appeal and an order dismissing it as time barred is one passed in an appeal. This Court referred to and followed the view taken by the Privy Council and by this Court in the two respective decisions above referred to. This Court quoted with approval the observations of Chagla C.J. in K.K. Porbunderwalla v. Commissioner of Income Tax (1952) 21 ITR 63) to the following effect:
"....although the Appellate Assitant Commissioner did not hear the appeal on merits and held that the appeal was barred by limitation his order was under Section 31 and the effect of that order was to confirm the assessment which had been made by the Income-tax Officer."
In Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332) rendered by four learned Judges of this Court, one of the questions that arose was whether the dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was a decision in the appeal. This Court held:
"We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits, itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal."
In Board of Revenue v. M/s. Raj Brothers Agencies Etc. (1973 (3) SCR 492), this Court approved the decision of the Madras High Court which had applied the principle stated in Messrs Mela Ram and Sons (supra).
10. The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi v. Mathew (1987 (2) KLT 848). Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes and an order dismissing the appeal was a decree that could be the subject of a second appeal. It was also held that Rule 3A of Order XLI introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal registered under Rule 9 of Order XLI of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal.
12. Learned counsel placed reliance on the decision in Ratansingh v. Vijaysingh and others (2001) 1 SCC 469) rendered by two learned Judges of this Court and pointed out that it was held therein that dismissal of an application for condonation of delay would not amount to a decree and, therefore, dismissal of an appeal as time barred was also not a decree. That decision was rendered in the context of Article 136 of the Limitation Act, 1963 and in the light of the departure made from the previous position obtaining under Article 182 of the L Imitation Act, 1908. But we must point out with respect that the decisions of this Court in Messrs Mela Ram and Sons and Sheodan Singh (supra) were not brought to the notice of their Lordships. The principle laid down by a three Judge Bench of this Court in M/s. Mela Ram and Sons (supra) and that stated in Sheodan Singh (Supra) was, thus, not noticed and the view expressed by the two Judge Bench, cannot be accepted as laying down the correct law on the question. Of course, their Lordships have stated that they were aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the definition of a decree obtaining in the Code. Thereafter noticing the decision of the Calcutta High Court above referred to, their Lordships in conclusion apparently agree with the decision of the Calcutta High Court. Though the decision of the Privy Council in Nagendra Nath Dev v. Suresh Chandra Dev (supra) was referred to, it was not applied on the ground that it was based on Article 182 of the Limitation Act, 1908, and there was a departure in the legal position in view of Article 136 of the Limitation Act, 1963. But with respect, we must point out that the decision really conflicts with the ratio of the decision in Messrs Mela and Sons and Sheodan Singh (supra) and another decision of this Court rendered by two learned Judges in Rani Choudhury v. Lt-Col. Suraj Jit Choudhury (1982) 2 SCC 596). In Essar Constructions v. N.P. Rama Krishna Reddy (2000) 6 SCC 94) brought to our notice two other learned Judges of this Court, left open the question. Hence, reliance placed on that decision is of no avail to the appellant."
Further reliance has been placed upon para 4 of the judgment reported in 2008 (1) ALJ 379; Umardeen v. Additional District Judge, Muzaffarnagar & Ors., which is being quoted below:-
"4. The same view was followed by a Full Bench of Orissa High Court in Ainthu Charan Parida v. Sitaram Jayanarayan Firm and Another (AIR 1984 Orissa 230). The Apex Court in Ratan Singh v. Vijay Singh (AIR 2001 SC 2491) approved if the reasoning of the Full Bench of Calcutta High Court in Mamuda Khateen (Supra) that when an appeal is barred by limitation, the appeal cannot be admitted at all until the application under Section 5 of the Indian Limitation Act is allowed and until then the appeal petition even if filed, will remain in limbo. If the application is dismissed the appeal petition becomes otiose and the order rejecting the memorandum of appeal in such circumstances is merely an incidental order and is not a decree. It thus appears that the order impugned in the revision rejecting the application under Section 5 of the Limitation Act had sealed the fate of the application under Order 9, Rule 13, C.P.C.. The order that would subsequently have to be passed dismissing the application under Order 9, Rule 13, CPC would be a mere consequential and incidental order. The order rejecting the application under Section 5 is the main order in such a case and the rejection of the application under Section 5 of the Limitation Act tantamounts to the rejection of the application under Order 9, Rule 13 CPC. The order was therefore appealable under Order 43, Rule 1(Cal), C.P.C."
He has further placed reliance upon a judgment reported in 2009 (2) ALJ 657; Smt. Geeta Bala Goyal & Anr. v. Kailash Chandra & Ors.. Taking support of the aforesaid judgment, he has submitted that the order rejecting an application under Section 5 of the Limitation Act or an application under Order 41 Rule 3(A) C.P.C. is in fact an order on an appeal, and therefore the said order is appealable under Section 100 C.P.C..
In such circumstances, learned counsel for the appellants submits that appeal filed by the appellants is maintainable and it has to be heard on merits.
I have considered the submissions of the parties and perused the record. From the record it appears that the Suit No. 50 of 1961 was filed by the respondent No.1 and that was decreed in the year 1981. It also appears that the judgment has become final. An order was passed on 13.03.1984 discharging the appointment of the receiver. Against that order, an appeal was preferred under Order 43 Rule 1(s) C.P.C., that was dismissed on 17.04.1996. Then, a delayed restoration application along with an application for condonation of delay was filed to readmit the misc. appeal. The application under Section 5 was rejected on 05.10.1999. Therefore, this appeal from order has been filed against the order dated 05.10.1999 under Order 43 Rule 1(t) C.P.C.. From the perusal of the various provisions it appears that this appeal is not an intra court appeal or Letters Patent Appeal. This is an appeal under the provisions of C.P.C. i.e. under Order 43 Rule 1(t) C.P.C. read with Section 104 C.P.C., hence any law concerning Letters Patent Appeal or appeal under Section 96 C.P.C. shall not apply. The appeal against decree are filed under Order 41 read with Section 96 C.P.C.. The present appeal is not an appeal arising out of Section 96 C.P.C. or under Order 41 C.P.C., but it is an appeal under Order 43 Rule 1 read with Section 104 C.P.C.. Under Order 43 and Order 42 the procedure of Order 41 has been made applicable, but it does not mean that it is an appeal under Order 41 or 42 C.P.C.. The procedure has been made application only "so far as may be".
As regards the contention of the appellants, the case law cited on behalf of the respondents shows that bar under Section 104(2) C.P.C. shall apply and appeal shall be barred. Further, it has been held in para 5 of the judgment reported in AIR 2002 Allahabad 113 Rameshwar Nath Sinha v. Narsingh Sahai, that in case no appeal lies against the main order, then no appeal shall lie against an interlocutory order, deciding certain applications.
As regards the contention raised by the appellants placing reliance upon supreme court judgment in Shyam Sunder Sarma's case (supra), in that case the appeal was dismissed against an ex parte decree as time barred by rejecting application for condonation of delay. In that case supreme court has held that such dismissal when it confirms the decision of the trial court on merits, itself amounts to the appeal being heard and finally decided on merits whatever may be the ground for dismissal of appeal. From the perusal of the record it appears that this appeal was under Order 43 Rule 1(s), therefore, Section 104(2) is attracted and no further appeal will lie. The objection taken by the respondents to this effect that it was a misc. appeal before District Judge under Order 43 Rule 1(s), as the said appeal itself was not maintainable, therefore, any further appeal cannot be held to be maintainable in view of the judgment of Rameshwar Nath Sinha (supra) in para 4 & 5 of which this Court has observed that effect of legal position would be that appeals under Order 43 Rule 1(1) can logically be filed only if an order under Rule 10 of Order 22 is passed in a suit pending trial. No such appeal would lie against an order under Rule 10 of Order 22 in a pending appeal on account of the bar created under Section 104(2) C.P.C.. Further, Court has observed that against a final order passed in a revision, no appeal lies. Even a revision will not lie in view of the decision of the Full Bench of this Court reported in AIR 1979 Alld. 218. As such, it is not conceivable that even though an appeal does not lie against the final order in the revision, an appeal would lie against an interlocutory order disposing of an application under Order 22, Rule 10 C.P.C. in a revision. Order 43 Rule 1 provides for an appeal from certain orders under the provisions of Section 104 C.P.C.. Thus appeals under Order 43 Rule 1 are appeals under the provisions of Section 104 C.P.C.. Section 104(2) creates a bar against filing an appeal against an order passed in appeal under that Section. In other words, if an order under Order 22 Rule 10 C.P.C. is passed in an appeal under the provisions of Section 104, no further appeal against that order would lie in view of the bar created under Section 104(2) C.P.C..
The appeal filed before District Judge was an appeal under Order 43 Rule 1(s), therefore, no further appeal will lie. Learned counsel for the appellants is not able to show from the record or judgment that appeal filed by the appellants before District Judge was not under Order 43 Rule 1(s). As regards reliance placed upon judgment of the apex court in P.S. Sathappan' case (supra), that was a case in which the apex court was considering regarding the applicability of the Letters Patent Appeal. In that context the apex court has said in para 144 & 145 that the bar under Section 104 (2) would not apply if an appeal was provided in any other law for the time being in force. The Court has further said that an appeal permitted by "any other law for the time being in force" will not be hit by Section 104(2). Section 104(1) C.P.C. expressly saves a Letters Patent Appeal and in that context analyse Section 104 C.P.C. Sub-section (1) of Section 104 C.P.C. provides that an appeal from orders enumerated under sub-section (1) which contemplates an appeal from the orders enumerated therein, as also appeals expressly provided in the body of the Code or by any law for the time being in force. The apex court in the context of aforesaid fact held that bar will not apply if an appeal was provided in any other law for the time being in force, therefore, such decision relied upon by the learned counsel for the appellants is not applicable to the present case. Shyam Sunder Sarma' s case (supra) was also not a case under Order 43 Rule 1 C.P.C.. It was a case under Section 96 / regular appeal. The question of maintainability of misc. appeal and further misc. appeal under Order 43 Rule 1 C.P.C. was not decided in that judgment, therefore, the said judgment will also not help the appellants.
In view of the aforesaid facts and circumstances, as narrated above, in my opinion, this appeal filed by the appellants itself is not maintainable, as such, it is hereby dismissed.
Interim order, if any, is discharged.
No order as to costs.
Order Date :-26.07.2011 NS