Back
2008 Supreme(All) 2703
[2009(1) ADJ 647]
ALLAHABAD HIGH COURT
BEFORE : RAN VIJAI SINGH, J.
MAHENDRA DHAR DUBEY (DEAD) AND OTHERS .......Appellant
Versus
PRASHU RAM PANDEY AND OTHERS .......Respondent
(Second Appeal No. 778 of 2008, decided on 5th December, 2008)
Counsel :
Sankatha Rai, Dr. Vinod Kumar Rai, Vijay Kumar Rai and Santosh Kumar Mishra for the Appellants; V.D. Ojha and S.A. Lari for the Respondents.
Headnote:Code of Civil Procedure, 1908—Section 100 and Order XLIII, Rule 1(w), Order VI, Rule 17, Order XLVII, Rule 4—U.P. Consolidation of Holdings Act, 1953—Sections 5(2) and 52—Limitation Act, 1963—Section 5—Second appeal—Maintainability of—Question of limitation—Suit filed by respondents for cancellation of sale-deed—In suit, appellants filed an application for abating suit under Section 5(2) of Act of 1953—Rejected by trial Court—Also, dismissal of appeal against—In second appeal against, matter was remanded back—Meanwhile, amendment of plaint, filed by plaintiffs, contending that suit was barred by Section 52 of Act of 1953—Thus, appeal was abated by lower appellate Court—Review application against, allowed by Court—Held, second appeal was not maintainable against judgment and decree of A.D.J.—Lower appellate Court has only abated case before Consolidation authorities, where de novo proceedings has to be started by Consolidation authorities—Since order of abating suit, has been passed in Review Application and it was allowed under Order XLVII, Rule 4, question arises what was remedy available to appellant to challenge order, passed in review application—Hence, objection of Stamp Reporter, with regard to filing of second appeal, cannot be decided—However, appellant given liberty to file an application for conversion of second appeal into F.A.F.O. [Paras 10, 14, 16, 19, 24 to 27]
Hon’ble Ran Vijai Singh, J.—This Second Appeal has been filed against the judgment and decree dated 29.3.2008 passed by Additional District Judge, Court No. 2, Deoria in appeal No. 8 of 1976, Parashuram Pandey and others v. Mahendra Dhar Dubey and others and also against the judgment and decree dated 28.5.2008 passed by the same Court in review petition No. 6 of 2008, Parashuram Pandey and others v. Rajendra and others, by which the original suit No. 433 of 1972 has been abated under Section 5 (2) of the U.P. Consolidation of Holdings Act.
2. The Stamp Reporter has raised two objections namely :
(1) If the limitation for filing Second Appeal is counted from the date of the order of review then the appeal is well within time and if the limitation is counted from the date of original decree passed by the Appellate Court then the appeal is barred by time.
(2) The Second Appeal is not maintainable against the order passed in Review Application.
3. Sri V.D. Ojha, learned counsel who has filed caveat on behalf of the plaintiffs-respondents has also raised the same preliminary objection. In his submissions in case the appeal is treated against the order dated 28.5.2008 passed on the review application then Second Appeal is not maintainable and the remedy is to file miscellaneous appeal under Order 43 Rule 1 (w) of the Code of Civil Procedure (in short C.P.C.) and in case, it is treated an appeal against the judgment and decree dated 29.3.2008 then the appeal is barred by time. Since there is no application under Section 5 of the Indian Limitation Act for condoning the delay in filing Second Appeal, therefore, it should be dismissed as barred by time. He has further submitted that both the orders cannot be challenged together in one Appeal.
4. Sri Sankatha Rai, learned counsel for the appellants has submitted before the Court that the limitation will be counted from the date of the last order passed in the review application and not from the date of original judgment dated 29.3.2008. In his submissions the Second Appeal is well within time and it is maintainable.
5. I have heard Sri Sankatha Rai, learned counsel for the appellants, Sri V.D. Ojha and Sri S.A. Lari, learned counsel for the respondents.
6. This case has got a chequered history. The respondents plaintiffs have filed a suit for cancellation of the sale deed on 22.4.1972 before the IIIrd Additional Munsif, Deoria. In the said suit the defendants-appellants have filed an application for abating the suit under Section 5 (2) of U.P. Consolidation of Holdings Act on 8.1.1975. The plaintiffs-respondents have raised an objection that the case should not abate before the Consolidation Authority, as it is the suit for cancellation of the sale deed on voidable ground. The application of the defendants-appellants was rejected by the Trial Court on 30.5.1975. This order has never been challenged.
7. However, later on after contest the suit was dismissed by the Trial Court on 27.11.1975. Aggrieved from that order the plaintiffs-respondents have filed an appeal. The appeal was also dismissed by the IVth Additional District Judge, Deoria on 20.9.1977. It appears that the aforesaid appeal was decided on merit in absence of the plaintiffs-respondents.
8. The plaintiffs-respondents have filed a Second Appeal challenging the judgment and decree of the lower appellate Court dated 20.9.1977 before the High Court. This appeal was numbered as Second Appeal No. 2646 of 1977 and was allowed by this Court vide judgment and order dated 28.10.2005 holding that in view of the explanation to Order 41 Rule 17 (1) of C.P.C., in absence of appellants counsel the appeal could not be decided on merit. Hence the judgment and decree dated 20.9.1977 was set aside and the matter was remanded back to the lower appellate Court for deciding the case afresh.
9. After the case was remanded an application was filed by the plaintiffs-respondents under Order 6 Rule 17 of the C.P.C. before learned Additional Dist
