Rambharose Singh vs Hemlata Aathle

V.S. Kokje, J.—This appeal was heard on the point of tenability. The lower appellate Court has dismissed the appeal before it holding it to be time barred, rejecting an application Under/Section 5 of the Limitation Act. The respondents has raised a preliminary objection that no second appeal is tenable against an order dismissing an application Under/Section 5 of the Limitation Act and consequently dismissing an appeal Under/Section 96 of C.P.C. The learned counsel for the respondent relied on the decision of the Supreme Court in Raja Kulkarni v. State of Bombay AIR 1954 SC 73 : 1954 Cri LJ 351) a decision of M.P. High Court in Balkrishna v. Tulsabai AIR 1987 MP 120, a Full Bench decision of''Orissa High Court in Ainthurcharan v. Sitaram AIR 1984 Ori 230 as also a Division Bench decision of M.P. High Court in Laxmibai v. Naguram Khilawandas 1992 JLJ 458 has been cited in support of the contention that a second appeal is not tenable against an order dis missing first appeal as time barred rejecting an application Under/Section 5 of the Limitation Act for condonation of delay. In reply the learned counsel for the appellant cited decision of the Supreme Court in M/s. Melaram & Sons v. Commissioner of Income Tax, Punjab AIR 1956 SC 367, a Full Bench decision of Kerala High Court in Tambi v. Mathew, AIR 1988 Ker 48 and also referred to a decision of Division Bench of M.P. High Court in Ajitsingh v. Bhagwanlal Master AIR 1989 MP 302.

Having heard the learned counsel for parties on the question of tenability of appeal, in view of the Division Bench decision of this Court which are binding precedent, this appeal has to be dismissed as not tenable. In Ajitsingh''s case (supra) it was held that a second appeal was not competent when the lower appellate Court has dismissed appellant''s application purporting to be made under Order 41, Rule 3A, C.P.C. read with Section 5 of the Limitation Act and that the position would be the same whether or not any decree was drawn up thereafter. In Laxmibai''s case (supra)-the point was considered and it was observed that the only remedy available to the aggrieved party against the order rejecting application Under/ Section 5 of the Limitation Act is to invoke writ jurisdiction under Article 227 of the Constitution. The Court also observed that such an appeal cannot even be converted as a revision application or a petition under Article 227 of the Constitution of India. Relying therefore, on the Division Bench decision in Laxmibai''s case (supra) as also on the earlier decision of this Court in Balkisau v. Tulsabai (supra) as also the Full Bench decision of Orissa High Court in Ainturcharan''s case (supra), this appeal is held to be not maintainable and is dismissed as such. There shall be no order as to costs. The interim order stands vacated. Record of the Courts below be sent back immediately.