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Judges : BALAKRISHNA MENON,SUKUMARAN,SHAMSUDDIN
THAMBI - Appellant
Versus
MATHEW - Respondent
Case No : S.A. No. 899 of 1981
Decided On : 10/24/1987
Advocates Appeared :
P.K. Balasubramaniam; S.V. Balakrishna Iyer; K. Jayakumar; For Appellant K.P. Dandapani; For Respondent
Whether an appeal properly presented with a petition to condone the delay can be admitted or not is at the second stage and to reach that stage the application has to be disposed of finally. S.3 of the Limitation Act also makes it obligatory on the part of the court to dismiss an appeal presented out of time subject of course to the provisions of Ss.4 to 24. In a case where an appeal has been admitted and then dismissed of a preliminary objection raised at the hearing disclosing the fact that the appeal was filed out of time, is it possible to say that the order dismissing the appeal, though on the ground of limitation, is not a decree? The question is whether a dismissal of the appeal after considering an application to condone the delay should be treated differently.
Fact of the Case:
None
Finding of the Court:
An appeal filed out of time is required to be dealt with by the appellate court under S.3 of the Limitation Act and an order dismissing the appeal is a decree that can be subject of a second appeal as held by the Full Bench in Haji Hassan Rowther's case. Sub-rule (4) of R.11 of O.41 CPG requires an appellate court, not being the High Court, dismissing an appeal under sub-rule (1) to deliver a judgment and a decree is to be drawn up in accordance with the judgment. It is thus clear that the dismissal of an appeal under 0.41 R.11 postulates the drawing up of a decree which can be the subject of a further appeal under 0.41 R.1 read with 0.42 C.P.C. Sub-role (4) of R.11 does not dispense with the need of a decree when the High Court dismisses an appeal under sub-rule (1). The only exception is that it need not deliver a judgment recording its reasons for dismissing the same. It seems to us clear that R.3A, of 0.41 introduced by the CPC. Amendment Act, 1976 does not io any way affect the principle laid down by the Full Beach in Haji Hassan Rowther's case and by Viswanatha Iyer J. in Kunhiraman's case.
Issues: Whether an appeal properly presented with a petition to condone the delay can be admitted or not is at the second stage and to reach that stage the application has to be disposed of finally. S.3 of the Limitation Act also makes it obligatory on the part of the court to dismiss an appeal presented out of time subject of course to the provisions of Ss.4 to 24. In a case where an appeal has been admitted and then dismissed of a preliminary objection raised at the hearing disclosing the fact that the appeal was filed out of time, is it possible to say that the order dismissing the appeal, though on the ground of limitation, is not a decree? The question is whether a dismissal of the appeal after considering an application to condone the delay should be treated differently.
Ratio Decidendi: The observations of Sir Dinshaw Mulla in Nagendranath v. Suresh Chandra (1932 P.C.165 at P. 167) quoted in the above passage from the judgment of Venkatarama Ayyar J. were made while considering the question of limitation under Art.182 of the Limitation Act, 1908. Under the said Article the period of limitation for the execution of a decree of a civil court was three years from the date of the decree or where there has been an appeal from the date of the final decree of the appellate court. The Privy Council held that the appeal even though irregular in form as not being an appeal against the decree of a Subordinate Judge and being insufficiently stamped for that purpose was nevertheless in appeal for the purpose of column 3 of Art.182 of she Limitation Act.
Final Decision: We are of the view that Chandrika Amma's case (supra) is not correctly decided.
Balakrishna Menon, J. - (for himself and Shamsuddin. J.)
This second appeal by the plaintiff is against the dismissal of his appeal by the lower appellate court consequent on the dismissal of I. A. No. 758/1980 under S.5 of the Limitation Act. 1963 for condonation of the delay of 3 days in filing the appeal. It censes up before a Full Bench on reference made by Varghese Kalliath J. for the reason that M.P. Menon J. bad is C.R.P. No. 318 of 1983 (the decision later reported in 1987 (1) KLT 543) declined to follow the decision of a Division Bench of this Court in Chandrika Amma V. Mohammed (1984 KLT 677) in preference to as earlier decision of a Division Bench in Chakkuvarkey v. Devassy Kathanar (AIR 1962 Ker.104). M.P. Menon J. had also dissented from the view expressed by Viswanatha Iyer J. in Kunhiraman v. Rossy (1979 KLT 718). Kalliath J. in a very illuminating order of reference has dealt with the points of view expressed in the two Division Bench rulings of this Court referred to above and has also expressed his Lordship's view agreeing with the principle laid do»n is Kunhiraman v. Rossy (1979 K. L. T. 718). Kalliath J. in his order of reference states:
"I feel that when on a question of law this Court speaks 'in discordant notes through two Division Benches. certainly. it will create difficulties and. to borrow the phraseology used by M.P. Menon I.. it will give a nervous shock to the litigants and the legal profession. Sir Williams Jones says "No man who is not a lawyer would ever know how to act and no lawyer would. is many instances. know how to advise. unless courts are bound by authority." In such circumstances. I feel that it is more commendable. staid and decorous to refer the matter to a larger Bench than to speculate upon improvements in those precedents which would give not only a nervous shock but also a traumatic neurosis to the litigants and those counsel who are bound to advise their clients on the correct position of law."
2. Referring to Kunhiraman'a case M.P. Menon J. stated in Viswambharan v. Parameswaran Asary (1987 (1) KLT 543) at page 351:
"In Kunhiraman v. Rossy (1979 KLT 718) G. Viswanatha Iyer I. is seen to have taken the view that when a delay petition is dismissed and the appeal Is consequently dismissed as barred. the remedy is to file an appeal against the decree "if that is allowed by law" and take a ground in that appeal that the lower court was wrong in not excusing the delay. My familiarity with the pro visions of the CPC is nothing when compared with that of his lordship; still. I should point out. with respect. that his lordship's attention does not appear to have been drawn to the newly introduced provisions of Rule 3A of Order 41 characterising a delayed appeal only as one "proposed to be filed".
The decision of Viswanatha Iyer J. in Kunhiraman's cais is in conformity with the decision of a Full Bench of this Court in Haji Hassan Rowther v. Bulgheese Beevi (1971 KLT 613). The Full Bench did not agree with the view expressed by Vaidialingam J. in Kuruvilla v. Rajagopala Iyer (1966 KLT 916) that a revision
is maintainable against an order dismissing a petition under S.5 of the Limitation Act for condonation of delay in filing an appeal and if the revision is allowed the order dismissing the appeal on the ground of delay will have no effect in law. The Full Bench observed:
"In Kuruvilla v. Rajagopala Iyer 1966 KLT.916, Vaidialingatn, J. has taken the view that when the order dismissing the petition to condone the delay in filing an appeal is interfered with in revision the order of the judge dismissing the appeal based on the rejection of the petition to excuse delay will be absolutely void and will have no effect in law. We cannot agree. The order dismissing the appeal can be only an illegal order which will have to be set aside only in a second appeal and not in a revision petition."
M. P. Menon J. has not adverted to the Full Bench decision in Haji Hassan Rowther's case. The provis
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