The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.408 OF 2023 In the matter of an Appeal under Section 100 read with Order-41 Rule-1 of the Code of Civil Procedure challenging the order dated 17.07.2023 passed by the learned District Judge, Puri in RFA No.94 of 2016. ---- Akash Ranjan Rath & Others …. Appellants -versus- Bilash Kumar Mohapatra & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr. S.P. Misra, Sr.Advocate. For Respondents - ---------------- CORAM: MR. JUSTICE D. DASH Date of Hearing: 22.11.2023 :: Date of Judgment:04.12.2023 D. Dash, J. The Appellants, by filing this Appeal under Section-100 read with Order-41 Rule 1 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the order 17.07.2023 passed by the learned District Judge, Puri in RFA No.94 of 2016. The Respondent No.1 as the Plaintiff had filed the suit for partition and permanent injunction in the Court of Additional Civil Judge (Senior Division), Puri which stood numbered as Civil Suit No.78 /336 of 2008/2010. The suit was preliminarily decreed by Page 1 of 6 RSA No.408 of 2023 {{ 2 }} judgment dated 27.01.2010 followed by the sealing and signing of the preliminary decree on 06.01.2010 which was later on made final by order dated 02.04.2016 followed by the drawal of the final decree on 20.05.2016 on the supplied stamp papers. The First Appeal (RFA No.94 of 2006) under section 96 of the Code having been filed on 01.08.2016 with delay of 6 years 6 months and 4 days from the expiry of the period of limitation from the date of judgment followed by preliminary decree passed in the suit, an application under section 5 of the Limitation Act had been filed before the First Appellate Court. That has been rejected by the order which is impugned in this order. The Appellants who are the aggrieved Defendant Nos.7 to 12, therefore filed this Second Appeal. 3. Mr. S.P. Misra, learned Senior Counsel for the Appellants confined his submission that when by time the First Appeal was filed, final decree in the original suit had been sealed and signed and therefore the First Appellate Court ought to have taken the Appeal to the one against the final decree and not to be an Appeal against the judgment and preliminary decree from which actually, the delay is too long. He submitted that when the final decree was sealed and signed on 20.05.2016, the Memorandum of Appeal RSA No.408 of 2023 Page 2 of 6 {{ 3 }} having been presented on 01.08.2016 it ought to have been held to be within the period of limitation. He also invited the attention of the Court to what has been stated in the Memorandum of Appeal presented before the First Appellate Court that the challenge was also to the final decree which according to him, the First Appellate Court has ignored. Thus, according to him, the First Appellate Court ought to have entertained the Appeal to be one against final decree and admitted the same. He, therefore, urged for admission of this Appeal to answer the above as the substantial question of law. 4. Keeping in view the submission as above, the impugned order; the judgment and preliminary decree passed by the Trial Court; as well as the final decree drawn have been perused. The records of the Trial Court as also the First Appellate Court have been gone through. 5. The Respondent No.1 as the Plaintiff instituted the suit on 19.09.2006. These Appellants were the Defendant Nos. 7 to 12. These Appellants being the Defendant Nos.7 to 12 had not filed the written statement nor had tendered any evidence either oral or documentary from their side in the suit. The judgment in the suit was passed on 27.01.2010 and the preliminary decree was drawn RSA No.408 of 2023 Page 3 of 6 {{ 4 }} on 06.02.2010. It is further seen that the suit finally stood decreed by order dated 02.04.2016 when the report of the Commissioner was accepted. The stamp as assessed being supplied by the party applying for the drawl of the final decree; the final decree was sealed and signed on 20.05.2016 over the said supplied stamp papers. 6. In the Memorandum of Appeal, the Appellants have stated as under:- “xxx xxx xxx xxx xxx Being aggrieved by the impugned preliminary and final decree proceeding passed in C.S. No.336 of 2006 and on 27.01.2010 and dated 20.05.2016 respectively by the Addnl. C.J. (Sr. Division), Puri, the present Appellants preferred this Appeal on the following amongst others. xxx xxx xxx xxx xxx” 7. Coming to address the submission as above, that the First Appellate Court ought to have treated it as an Appeal against the final decree ignoring the mention in the memorandum of Appeal that the preliminary decree was too under challenge; it be noted that the order by which the preliminary decree is made final is the final decree for being appealed against. The time period accordingly starts from the date of order by which the preliminary decree was made final and not from the date when the final decree RSA No.408 of 2023 Page 4 of 6 {{ 5 }} is drawn on the supplied stamp papers which only makes it executable and from that, the period for filing the execution proceeding starts to run. The Appellant seeking to challenge the final decree has to file the appeal within thirty days from the date when the order is passed making the preliminary decree final by enclosing the certified copy of that order and the running of the time period does not remain suspended till drawal of the final decree on the stamp papers and the sealing and signing for which there is no prescribed time limit. 8. In the given case, the Appellants while presenting the Memorandum of Appeal before the First Appellate Court have not filed the certified copy of the order dated 02.04.2016 by which the preliminary decree was made final. Therefore, on this ground alone, the submission that the First Appeal ought to have been treated as one against the final decree fails. The Appellants having merely enclosed the final decree drawn on stamp papers and sealed and signed on 20.05.2016 would not be permitted to say that the First Appeal was against the final decree simply because it has been so mentioned in the memorandum that there is also challenge to the final decree when the challenge to the preliminary decree is also mentioned and RSA No.408 of 2023 Page 5 of 6 {{ 6 }} prayed for. In the absence of the certified copy of the order by which the preliminary decree was made final, the First Appeal could not have been treated as one against the final decree. 9. In the wake of aforesaid, the submission of the learned Senior Counsel for the Appellants (Defendant Nos.7 to 12) cannot be countenanced with. Accordingly, the Appeal does not merit admission as there arises no substantial question of law for being answered. 10. Resultantly, the Appeal stands dismissed. Narayan (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: PERSONAL ASSISTANT Reason: Authentication Location: OHC Date: 12-Dec-2023 15:08:35 RSA No.408 of 2023 Page 6 of 6