Sudama Singh And ORS v. Surajdeo Sao And ORS

Patna High Court C.Misc. No.3 of 2016 (2) dt.29-07-2016

IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.3 of 2016 ====================================================== Sudama Singh & Ors .... .... Appellant/s

Versus

Surajdeo Sao & Ors .... .... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Bal Bhushan Choudhary For the Respondent/s : Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 29-07-2016 Heard learned counsel, Mr. R.K.P. Singh for the petitioners.

2.

By the impugned order dated 23.02.2016, the learned District Judge, Jehanabad in T.A. No. 04 of 2016 rejected the limitation application and dismissed the title appeal at the stage of admission itself.

3.

The Hon'ble Supreme Court in the case of Shyam Sunder Sharma Vs. Pannala Jaiswal and Ors. reported in AIR 2005 SC 226 has held that an appeal filed along with an application for condoning the delay in filing the appeal, when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal. It appears that in that case the earlier decision of the Supreme Court in the case Ratan Singh Vs. Vijay Singh reported in 2001 (1) SCC 469 was cited, wherein it was held that dismissal of appeal on rejection of an application for

Patna High Court C.Misc. No.3 of 2016 (2) dt.29-07-2016 condonation of delay would not amount to a decree. At paragraph12, the Hon'ble Supreme Court held that we must point out with respect to that decision that the decision of this Court in M/S. Mela Ram and Sons and Shedan Singh (supra) were not brought to the notice of their lordships. The principle laid down by a three Judges Bench of this Court in M/S/ Mela Ram and Sons (supra) and that stated in Sheodan Singh was, thus, not noticed and the view expressed by the two Judges Bench, cannot be accepted as laying down the correct law. The two Judges Bench decision in the case of Ratan Singh Vs. Vijay Singh has been specifically overruled by the Division Bench. Therefore, in my opinion, the order, whereby, the appeal has been dismissed as time barred, is a decree.

As such, the petitioner, if so advised, may file appeal as provided in the Code of Civil Procedure. Thus, I find no reason to interfere with the impugned order in exercise of supervisory jurisdiction. Thus, this civil miscellaneous application is dismissed as not maintainable.

(Mungeshwar Sahoo, J) brajesh/- U