An order of a single judge of the High Court condoning the delay in filing a petition to set aside the abatement of an appeal is a judgment within the meaning of Cl. 15 of the Letters Patent and is appealable.

Headnote:
LETTERS PATENT APPEAL - JUDGMENT - INTERPRETATION - ORDER CONDONING DELAY IN FILING PETITION TO SET ASIDE ABATEMENT - VALUABLE RIGHT - JUDGMENT WITHIN MEANING OF CL. 15 OF LETTERS PATENT - MAINTAINABILITY OF APPEAL - DELAY IN FILING PETITION TO SET ASIDE ABATEMENT - EXPLANATION - CONDONATION OF DELAY - PRINCIPLES.
Fact of the Case:

The respondent filed a petition to condone the delay of 679 days in filing the petition to set aside the abatement of the appeal. The respondent claimed that he had no knowledge of the dismissal of the appeal until 22-8-1972, but the affidavit filed in support of the petition did not explain the day-to-day delay from 22-8-1972 until the filing of the petition.
Finding of the Court:

The court held that the order of the single judge condoning the delay in filing the petition to set aside the abatement was a judgment within the meaning of Cl. 15 of the Letters Patent and therefore, the appeal was maintainable. The court further held that the respondent had not explained the day-to-day delay and, therefore, the petition to condone the delay could not be allowed.
Issues: 1. Whether the order of the single judge condoning the delay in filing the petition to set aside the abatement was a judgment within the meaning of Cl. 15 of the Letters Patent? 2. Whether the respondent had explained the day-to-day delay in filing the petition to set aside the abatement?
Ratio Decidendi: 1. The court held that the order of the single judge condoning the delay in filing the petition to set aside the abatement was a judgment within the meaning of Cl. 15 of the Letters Patent because it determined a valuable right of the respondent in the first appeal. 2. The court held that the respondent had not explained the day-to-day delay in filing the petition to set aside the abatement because the affidavit filed in support of the petition did not explain the delay from 22-8-1972 until the filing of the petition.
Final Decision: The appeal was allowed and the order of the single judge condoning the delay in filing the petition to set aside the abatement was set aside.

( 1 ) AGGRIEVED by the judgment and decree dated 4-10-1967 in O. S. 78/64 on the file of the Fourth Additional Judge, City Civil Court, Hyderabad, the plaintiff preferred an appeal before a Single Judge of this Court. During the pendency of the appeal, the defendant, Ramanuja Swamy died on 25-9-68. On 14-11-1968 C. M. P. No. 20322/68 was filed to bring his wife, Tayaramma on record as his sole legal representative. That C. M. P. came up for orders before the Court with regard to non-payment of batta, and on 1-10-1969 it was ordered that if batta was not paid within one week, the C. M. P. would stand dismissed. The order not being complied with, the same C. M. P. stood dismissed on 8-10-1969. However, it was again restored on 23-1-1970. Once again, the same C. M. P. was dismissed by Sriramulu, J. , on 11-8-1970 as the order of the Court was not complied with even by that date. While dismissing the C. M. P. the learned Judge also dismissed the appeal. On 1-1-1970 plaintiff in the suit who was the appellant before the single Judge filed a petition (C. M. P. No. 8678/70) to implead Rangachary and Chandraiaah who are appellants to this appeal as additional parties under Order 1, Rule 10, C. P. C. It came up for orders before the Court. A D. V. Reddy, J. , dismissed this petition for default on 2-3-1971. Then another C. M. P. bearing No. 3101/71 was filed on 18-4-1971 to restore C. M. P. No. 8678/75. In this petition Tayaramma was made a party but not Rangachary and Chandraiah, another C. M. P. bearing No. 4488/71 was filed by the respondent to condone the delay in filing C. M. P. no. 2101 of 1971. Both these C. M. Ps. bearing 2101/71 and 4488/71 were again dismissed for default on 17-9-1971. The respondent then filed C. M. P. No. 4540/71 to restore C. M. P. No. 2101/71 which was a C. M. P. to restore C. M. P. No. 4577/71 which was a petition to condone the delay in filing C. M. P. No. 2101/71. During the pendency of these two C. M. Ps. Tayaramma who was made a party to C. M. P. No. 2101/71 died on 23-3-1972. The respondent was directed on 24-3-1972 to take the necessary steps, but no steps were taken within the time, and consequently, C. M. P. No. 4540/71 and 4577/71 got abated.

( 2 ) ONCE again the respondent filed C. M. P. No. 6734/72 on 12-7-1972 for setting aside the abatement of C. M. P. No. 4577/71 which was a petition filed to restore C. M. P. No. 4488/71. The respondent also filed C. M. P. No. 6735/72 to implead the legal representatives of Tayaramma in C. M. P. No. 4577/71. Another C. M. P. bearing No. 6737/72 was filed by the respondent to set aside the abatement in C. M. P. No. 4540/71 which was a petition to restore C. M. P. No. 2101/71. A fourth C. M. P. bearing No. 6738/72 was also filed for impleading the legal representatives of Tayaramma in C. M. P. No. 4540/71 which was a petition to restore C. M. P. No. 2101/71. All these four C. M. Ps. came up for hearing before A. D. V. Reddy, J on 29-8-72. The learned Judge passed the following order : "there are all petitions filed after the disposal of the main appeal C. C. C. A. No. 109 of 1968 which was dismissed on 11-8-1970, they are therefore not even maintainable. It is stated by Mr. Upendralal Waghray appearing for the appellants that the appeal was disposed of without the knowledge of is clients and that he is going to file a petition to have the appeal restored. If the appeal is restored it is then open to him to take advantage of whatever legal consequences that follow on such restoration with regard to the petitions. These petitions are therefore dismissed with costs. One set. "

( 3 ) IT is to be noted that until 22-8-1972 there was no petition on behalf of the respondent to set aside the abatement and dismissal not only on C. M. P. No. 20322/68 but also of the main appeal C. C. C. A. No. 20322/68 and C. C. C. A. No. 109/68 were dismissed on 11-8-1970 the respondent filed C. M. P. No. 1948/73 to condone the delay of 679 days on 18-10-1972 in filing the C. M. P. to

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1975 Supreme(AP) 241

Andhra Pradesh High CourtJudges : A.SAMBASIVA RAO, K.A.MUKTADARV.T.V.Rangacharyulu - AppellantVersusSriram Gnaneswar - RespondentDecided On : 12-01-75

An order of a single judge of the High Court condoning the delay in filing a petition to set aside the abatement of an appeal is a judgment within the meaning of Cl. 15 of the Letters Patent and is appealable.

Cases Referred (1)

Andhra Pradesh High Court
Judges : A.SAMBASIVA RAO, K.A.MUKTADAR
V.T.V.Rangacharyulu - Appellant
Versus
Sriram Gnaneswar - Respondent
Decided On : 12-01-75