Chetan And Another vs Ashok And Others

Heard finally with consent.

By this petition under Article 227 of the Constitution, two of the respondents in the pending appeal have challenged the order of the first appellate Court dated 04/07/2019 whereby the applications filed by the respondent No.1 herein (appellant in the first appeal) under Order 41 Rule 27 of the CPC have been allowed.

A limited submission has been raised by learned counsel for the petitioners that the applications under Order 41 Rule 27 cannot be decided by the appellate Court separately and they are required to be heard and decided at the time of final hearing of the appeal.

Learned counsel for the respondent No.1 has supported the impugned order.

Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that against the judgement and decree of the trial Court, a regular first appeal is pending before the Court below wherein during the pendency of the appeal, two applications under Order 41 Rule 27 being IA No.2 and IA No.5 were filed and the first appellate Court has decided these two applications by a separate impugned order dated 04/07/2019 keeping the appeal pending.

The Supreme Court in this regard by the judgement in the matter of G. Shashilala (Died) through LRs Vs. G. Kalawati Bai (Died) through LRs and others reported in AIR 2019 SC 2631 has reiterated the settled position that the applications under Order 41 Rule 27 of the CPC are required to be decided along with the appeal itself and they are not to be decided separately. In this regard, it has been held as under:-

"13. In our considered opinion, the need to remand the case to the High Court has occasioned for the reason that the High Court committed jurisdictional error while deciding the application filed by the respondents under Order 41 Rule 27 of the Code (428/2011) separately.

The question as to how the application filed under Order 41 Rule 27 of the Code in the appeal should be decided by the Appellate Court remains no more res integra and stands decided by the three decisions of this Court in North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das(Dead) by L.Rs., (2008) 8 SCC 511 (See paras 13-17), Shalimar Chemical Works Limited vs. Surendra Oil & Dal Mills(Refineries) & Ors., (2010) 8 SCC 423 (See para 16) and Corporation of Madras & Anr. vs. M. Parthasarathy & Ors., 2018 (9) SCC 445 (See paras 11-15).

Unfortunately, the High Court while deciding the application (428/2011) filed by the respondents under Order 41 Rule 27 of the Code did not notice the law laid down in the aforementioned three decisions and proceeded to decide the application/appeals and thus committed a jurisdictional error.

In view of the foregoing discussion, we are unable to concur with the approach, reasoning and the conclusion arrived at by the High Court in the impugned order calling for interference by this Court.

The appeals, therefore, deserve to be allowed and are accordingly allowed. The interim order dated 11.07.2016 by which the application under Order 41 Rule 27 of the Code was allowed and the final order impugned herein are set aside.

The case is remanded to the High Court for deciding the two first appeals, out of which these appeals arise, afresh including the two applications filed by the parties to the appeals under Order 41 Rule 27 of the Code on their respective merits keeping in view the law laid down in the abovementioned three decisions insofar as it deals with disposal of the application of Order 41 Rule 27 of the Code and decide the appeals on merits in accordance with law uninfluenced by any observations made in the impugned order and in this order."

In view of the aforesaid judgement, the impugned order dated 04/07/2019 so far as it relates to the decision on the applications under Order 41 Rule 27 of the CPC cannot be sustained and is hereby set aside with a direction to the first appellate Court to decide the IA No.2 and IA No.5 while deciding the first appeal itself.

C.c. as per rules.