Smt. Manoramabai vs State of M.P. and Others

Hon''ble Shri N.K. Mody, J.—This order shall also govern the disposal of WP.No.26/12 as in both the petitions the order under challenge is dated 21/12/11 passed by IX ADJ, Indore in Civil Regular Appeal No.12/11 whereby the application filed by the petitioner u/s 151 CPC for deciding the application u/s 5 of Limitation Act filed by the respondents first was dismissed, present petition has been filed.

Short facts of the case are that the petitioner filed a suit for declaration and permanent injunction against respondent Nos. 1 to 3 which was numbered as Civil Suit No.49-A/90 in which an ex-parte decree was passed in favour of petitioner on 01/12/1993. An appeal was filed by respondent Nos. 1 to 3 against the petitioner on 25/04/11. Since the appeal was not in time and was barred by more than 18 years, therefore, an application was filed by the respondent Nos. 1 to 3 alongwith the appeal u/s 5 of Limitation Act alleging that the delay be condoned. The application was opposed by the petitioner in both the petitions. Since an effort was made to hear and decide the application alongwith the appeal, therefore, a specific application was filed by the petitioner of WP.No.172/12 to the effect that before proceeding further the application for condonation of delay be decided. Similar type of objection was raised by the petitioner of WP.No.26/12 orally who is respondent No.4 in the present petition. Since the decree was only in favour of petitioner and the suit property was transferred by the petitioner, therefore, respondent No.4 was impleaded as party upon the application filed by the respondent No.4. The application filed by the petitioner u/s 151 CPC was opposed by the respondent Nos. 1 to 3. After hearing the parties learned Appellate Court dismissed the application, against which present petitions have been filed.

Learned Counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that the appeal can be decided only if a competent appeal is filed. It is submitted that since the appeal was not filed in time, therefore, there was no appeal in the eye of law. It is submitted that unless and until the application u/s 5 of Limitation Act is allowed the appeal cannot be heard. Learned Counsel placed reliance on Order 41 Rule 3A, which has been inserted vide amendment Act No.104 of 1976 w.e.f. 01/02/77, which reads as under:-

Rule 3A. Application for condonation of delay.

(1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be.

(3) Where an application has been made under Sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under Rule 11, decide to hear the appeal.

Learned Counsel submits that in view of the amended provision the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. Learned Counsel placed reliance on a decision of this Court in the matter of Maniram Vs. Mst. Fuleshwar, 1996 JLJ 328 wherein Divisional Bench of this Court has observed that from the provisions of sub-Rule (1) & (2) of Rule 3A, it is clear that the said provisions have been incorporated only to safeguard the interest of the respondents and provide for application for condonation of delay to be decided before proceeding to decide the appeal itself under Rule 11 or Rule 13 of Order 41 CPC so that the respondents may not be required to contest the appeal, in case the finding regarding application for condonation of delay is against the appellants and the appeal is consequently to be dismissed on that ground. However, these provisions do not contemplate dismissal of appeal itself which has to be done under Rule 11 or 13 of Order 41 CPC, after the decision on the application filed under Rule 3A of Order 41 CPC. In other words, only after the application for condonation of delay filed under Order 41 Rule 3A of the CPC or section 5 of the Limitation Act is decided, the appeal can be disposed of and decided in terms of Order 41 Rule 11 or 13 CPC. Further reliance is placed on a decision in the matter of Gagandeep Pratishthan Pvt. Ltd. and Others Vs. Mechano and Another, wherein preliminary objection was raised regarding maintainability of appeal on account of delay in filing, Hon''ble Apex Court held that the same should be considered first. On the strength of aforesaid position of law Learned Counsel submits that the petition filed by the petitioner be allowed and the impugned order passed by the learned Court below be set aside.

Learned Counsel for respondent Nos. 1 to 3 submit that no illegality has been committed by the learned Court below in passing the impugned order. It is submitted that there is no bar on the Court to decide the application alongwith the appeal. It is submitted that since the discretion has been exercised in favour of respondent Nos. 1 to 3, therefore, no case for interference is made out. It is submitted that both the petitions be dismissed.

Rule 3A of Order 41 CPC has been inserted by amendment Act No.1976 (104 of 1976) w.e.f. 01/02/77. The objects and reasons for inserting Rule 3A by way of amendment is mentioned as under:-

Clause 90-Sub-clause (iii).-Where an appeal is filed after the expiry of the period of limitation, it is the practice to admit the appeal subject to the provisions as to limitation being raised at the time of hearing. This practice has been disapproved by the Privy Council which has stressed the expediency of adopting a procedure for securing the final determination of the question as to limitation even at the stage of admission of the appeal. New Rule 3A is being inserted to give effect to the said recommendation.

Clause 87 (Original clause 90) (ii).-The committee is of the view that the Court should not be empowered to grant ad interim stay of execution of the decree unless the Court has, after hearing under Rule 11 of Order XLI, decided to hear the appeal. Sub-rule (3) in the proposed Rule 3A of Order XLI has been inserted accordingly.

Keeping in view the fact that no competent appeal is before the Court below as the same was not filed in time and also keeping in view the amended provision and law laid down by the Hon''ble Apex Court, this Court is of the view that there is no specific bar which restrains the appellate Court to hear and decide the appeal alongwith the application for condonation of delay. On the contrary provision is otherwise which puts bar on the appellate Court to decide the appeal unless the application for condonation of delay is decided in favour of petitioner. this Court is also of the view that the learned Court below committed error in passing the impugned order. In view of this both the petitions stand allowed and the impugned order passed by the learned Court below is set aside with a direction to the learned Appellate Court to decide the application filed u/s 5 of Limitation Act first before proceeding further.

With the aforesaid observations, petition stands disposed of. Copy of this order be placed in the record of WP.No.26/2012. No order as to costs.