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HIGH COURT OF ORISSA
R. L. Narasimham, C. J. And R. K. Das, J.
BANWARILAL BHOID - Appellant
Versus
P. NEELKANTHAM - Respondent
Civil Revn. 34 Of 1963
Decided On : SEPTEMBER 30, 1964
CIVIL PROCEDURE CODE - SECTION 2(2) - DEFINITION OF DECREE - REJECTION OF MEMORANDUM OF APPEAL AS TIME-BARRED - WHETHER A DECREE - APPLICABILITY OF DEEMING CLAUSE - SCOPE OF SUB-CLAUSE (B) OF THIRD PART OF DEFINITION - DISTINCTION BETWEEN REJECTION OF MEMORANDUM OF APPEAL FOR NON-PAYMENT OF COURT FEE AND REJECTION FOR LIMITATION - APPLICABILITY OF STARE DECISIS - CONVERSION OF CIVIL REVISION INTO SECOND APPEAL.
Fact of the Case:
The petitioner filed an appeal before the District Judge, which was time-barred by five days. Along with the appeal, he filed a petition under Section 5 of the Limitation Act for condoning the delay. The District Judge rejected the petition and dismissed the appeal as time-barred. The petitioner filed a civil revision petition challenging the order of the District Judge.
Finding of the Court:
The Court held that the order of the District Judge was a "decree" within the meaning of Section 2(2) of the Civil Procedure Code and, therefore, the petitioner had the right to file a second appeal and not a civil revision. The Court further held that the deeming clause in Section 2(2) of the Civil Procedure Code, which provides that the rejection of a plaint shall be deemed to be a decree, cannot be stretched to include the rejection of a memorandum of appeal. However, the Court held that the rejection of a memorandum of appeal as time-barred would come within the scope of Sub-clause (b) of the third part of the definition of "decree" in Section 2(2), which provides that an order of dismissal for default shall be deemed to be a decree. The Court distinguished between the rejection of a memorandum of appeal for non-payment of court fee and the rejection of a memorandum of appeal for limitation, holding that the former may amount to "default" within the meaning of Sub-clause (b), but the latter does not.
Issues: 1. Whether the order of the District Judge rejecting the petition under Section 5 of the Limitation Act and dismissing the appeal as time-barred was a "decree" within the meaning of Section 2(2) of the Civil Procedure Code? 2. Whether the deeming clause in Section 2(2) of the Civil Procedure Code, which provides that the rejection of a plaint shall be deemed to be a decree, can be stretched to include the rejection of a memorandum of appeal? 3. Whether the rejection of a memorandum of appeal as time-barred would come within the scope of Sub-clause (b) of the third part of the definition of "decree" in Section 2(2), which provides that an order of dismissal for default shall be deemed to be a decree?
Ratio Decidendi: 1. The Court held that the order of the District Judge was a "decree" within the meaning of Section 2(2) of the Civil Procedure Code because it was a formal expression of adjudication which conclusively determined the rights of the parties with regard to all or any of the matters in controversy in the suit. 2. The Court held that the deeming clause in Section 2(2) of the Civil Procedure Code, which provides that the rejection of a plaint shall be deemed to be a decree, cannot be stretched to include the rejection of a memorandum of appeal because the rejection of a plaint is a specific act mentioned in the deeming clause, whereas the rejection of a memorandum of appeal is not. 3. The Court held that the rejection of a memorandum of appeal as time-barred would come within the scope of Sub-clause (b) of the third part of the definition of "decree" in Section 2(2), which provides that an order of dismissal for default shall be deemed to be a decree, because the filing of a time-barred appeal is a "default" within the meaning of Sub-clause (b).
Final Decision: The Court held that the civil revision petition was not maintainable and dismissed it. The Court also allowed the petitioner to convert the civil revision petition into a second appeal on payment of the necessary court fee.
NARASIMHAM, C. J.
( 1 ) THIS is a revision against the order of the District Judge of Koraput dated 10-10-1962 rejecting a petition under Section 5 of the Limitation Act for condoning the delay in filing title appeal No. 6 of 1962 before him, against the judgment of the Munsif of Jeypore and (as a necessary consequence to that order) rejecting the memorandum of appeal as filed beyond time. The maintainability of this revision petition was challenged on the ground that the order of the District Judge was a "decree" as defined in Section 2 (2) of the Civil Procedure Code and that, consequently the aggrieved party had the right to file a 2nd appeal, and that no revision lay. This question involves the examination of the correctness of the decision of a Single Judge of this Court reported in Achyuta Dhangada Majhi v. Sibram Dhangadamajhi, ILR (1962) Cut 818 and hence this revision was referred to a Division Bench.
( 2 ) THE petitioner was the plaintiff before the Munsif of Jeypore in T. S. No. 6/60. His suit was dismissed on merits by the learned Munsif on 5-12-61. He filed an appeal before the Dt. Judge on 6-2-62 on which date the appeal was time barred by five days. Along with the appeal he filed a petition under Section 5 of the limitation Act for condoning the delay. Notice was issued to the opposite party and some evidence was also recorded on the side of the petitioner. Eventually on 1910-62 the appellate Court held that sufficient grounds had not been made out for condoning the delay and hence it rejected the petitioner's application under section 5 of the Limitation Act. In the same order, at the end (see paragraph 6)the Court passed the following order:
"in the result, I would reject the memorandum of appeal as having been filed beyond time. " in pursuance of this order a formal decree was drawn up on 23-10-62 and duly notified. As there was no objection, it was sealed and signed on 29-10-62. The operative portion of the decree is as follows: "it is ordered that the appeal be, and the same is, hereby dismissed as barred by limitation and the judgment and decree of the Court of the munsif of Jeypore are confirmed. "
If this order be held to be a "decree" within the meaning of the definition clause 'section 2 (2)' of the Civil Procedure Code, it is obvious that the remedy of the aggrieved party is only by way of 2nd appeal and not by way of Civil revision. Mr. Murty, however, contended, relying on the aforesaid decision of this Court, that the said order was not a "decree" even though it has been formally drawn up and signed as a decree.
( 3 ) WITH the exception of the aforesaid decision of this Court there is no decision of any other High Court to the effect that the dismissal of an appeal on the ground that it is barred by limitation with the consequent result of affirming the judgment and decree of the lower Court, is not a "decree" as defined in the Civil Procedure code. On the other hand all the High Courts have uniformly taken the view that such an order would amount to a "decree". A decree has been defined in Section 2 (2) of Civil Procedure Code' as
"2 (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall he deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include (a) any adjudication from which "n appeal lies as an appeal from an order, or (b) any order of dismissal for default *****" the aforesaid definition consists of three parts. The first part would directly apply if the impugned order is held to be, "a formal expression of adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy". Even if the impugned order does not come within the aforesaid f
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