1 All] Mahendra Dhar Dubey and others V. Prashu Ram Pandey and others 1 APPELLATE JURISDICTION against the so called judgment and CIVIL SIDE decree dated 29.3.2008 DATED: ALLAHABAD 05.12.2008 The Code of Civil Procedure is self BEFORE contained code and there is a remedy for THE HON’BLE RAN VIJAI SINGH, J. the appellant for filing an appeal from such order under Order 43 Rule 1 (w) of the C.P.C. Therefore, the appellant can Second Appeal No. 778 of 2008 file First Appeal From Orders under Order 43 Rule 1 (w) of the C.P.C. Mahendra Dhar Dubey (Dead) and others Case law discussed: …Defendants-Appellants AIR 1960 SC 941, AIR 1945 Alld. 266, AIR, Versus 2001, Supreme Court, 279, AIR 2004 Prashu Ram Pandey and others Karnataka 75 …Plaintiffs Respondents (Delivered by Hon'ble Ran Vijai Singh, J.) Counsel for the Appellants: Sri Sankatha Rai 1. This Second Appeal has been Sri Dr. Vinod Kumar Rai filed against the judgment and decree Sri Vijay Kumar Rai Sri Santosh Kumar Mishra dated 29.3.2008 passed by Additional District Judge, Court No.2, Deoria in Counsel for the Respondents: appeal no. 8 of 1976 Parashuram Pandey Sri V.D. Ojha and others vs Mahendra Dhar Dubey and Sri S.A. Lari others and also against the judgment and decree dated 28.5.2008 passed by the Code of Civil Procedure-Section 2 (2), 2 same court in review petition No. 6 of (9), 100 Order 41 rule 3 c Order 43 Rule 2008 Parashuram Pandey and others vs. 1 (w)-Second Appeal-challenging the Rajendra and others by which the original st order passed by 1 Appellate Court suit no. 433 of 1972 has been abated dismissing appeal as abated under section 5 (2) of U.P. Consolidation of under Section 5 (2) of the U.P. Holding Act-by review apart from word Consolidation of Holdings Act. ‘Appeal’ suit also included-such order not within the meaning of judgement and 2. The Stamp Reporter has raised Decree-held-Second Appeal not two objections namely:- maintainable-except F.A.F.O. under order 43 rule 1 (4). (1) If the limitation for filing Second Held: Para 24 & 26 Appeal is counted from the date of the order of review then the appeal is well After testing the requirements of a within time and if the limitation is judgment and decree as contained under counted from the date of original decree the relevant provisions of C.P.C. since I passed by the Appellate Court then the have held that so called judgment and decree dated 29.03.2008 do not contain appeal is barred by time. any ingredients of the judgment and (2) The Second Appeal is not decree and the Second Appeal can only maintainable against the order passed in be filed against the judgment and decree Review Application. of the lower appellate court, therefore, I am of the considered opinion that Second Appeal is not maintainable 2 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 3. Sri V.D. Ojha, learned counsel Holdings Act on 08.01.1975. The who has filed caveat on behalf of the plaintiffs respondents have raised an plaintiffs respondents has also raised the objection that the case should not abate same preliminary objection. In his before the Consolidation Authority, as it submissions in case the appeal is treated is the suit for cancellation of the sale deed against the order dated 28.05.2008 passed on voidable ground. The application of on the review application then Second the defendants appellants was rejected by Appeal is not maintainable and the the Trial Court on 30.5.1975. This order remedy is to file miscellaneous appeal has never been challenged. under Order 43 Rule 1 (W) of the Code of Civil Procedure (in short C.P.C.) and in 7. However, later on after contest case, it is treated an appeal against the the suit was dismissed by the Trial Court judgment and decree dated 29.03.2008 on 27.11.1975. Aggrieved from that order then the appeal is barred by time. Since the plaintiffs- respondents have filed an there is no application under Section 5 of appeal. The appeal was also dismissed by the Indian Limitation Act for condoning the IV th Additional District Judge, the delay in filing Second Appeal, Deoria on 20.09.1977. It appears that the therefore, it should be dismissed as barred aforesaid appeal was decided on merit in by time. He has further submitted that absence of the plaintiffs-respondents. both the orders cannot be challenged together in one Appeal. 8. The plaintiffs-respondents have filed a Second Appeal challenging the 4. Sri Sankatha Rai, learned counsel judgment and decree of the lower for the appellants has submitted before the appellate court dated 20.09.1977 before Court that the limitation will be counted the High Court. This appeal was from the date of the last order passed in numbered as Second Appeal No. 2646 of the review application and not from the 1977 and was allowed by this Court vide date of original judgment dated judgment and order dated 28.10.2005 29.03.2008. In his submission the Second holding that in view of the explanation to Appeal is well within time and it is Order 41 Rule 17 (1) of C.P.C., in maintainable. absence of appellant counsel the appeal could not be decided on merit. Hence the 5. I have heard Sri Sankatha Rai, judgment and decree dated 20.09.1977 learned counsel for the appellants, Sri was set aside and the matter was V.D.Ojha and Sri S.A. Lari, learned remanded back to the lower appellate counsel for the respondents. court for deciding the case afresh. 6. This case has got a chequered 9. After the case was remanded an history. The respondents plaintiffs have application was filed by the plaintiffs- filed a suit for cancellation of the sale respondents under Order 6 Rule 17 of the deed on 22.4.1972 before the IIIrd C.P.C. before learned Additional District Additional Munsif, Deoria. In the said suit Judge Court No.16, Deoria for the defendants appellants have filed an amendment of the plaint by adding para application for abating the suit under 15-A to the effect that village has already Section 5 (2) of U.P. Consolidation of been de notified under Section 52 of 1 All] Mahendra Dhar Dubey and others V. Prashu Ram Pandey and others 3 Consolidation of Holdings Act, therefore, for the respondents with regard to the the suit is barred by Section 49 of maintainability of Second Appeal. Consolidation of Holdings Act. This was vehemently opposed by the appellant, 13. As noted above, two objections defendant, however, the appeal was are raised by the Stamp Reporter one with abated by the lower appellate court on regard to the limitation and another with 29.3.2008 under Section 5(2) of the U.P. regard to maintainability of Second Consolidation of Holdings Act. Appeal. This Court desires to deal with the second objection i.e., with regard to 10. Thereafter the plaintiffs maintainability of Second Appeal first respondents have filed a review and in case this point is decided in application for correcting the error affirmative then there will be no occasion apparent on the record on the ground that to decide the objection no.1. if the appeal has abated the suit stands abated because the appeal is the Second Objection of the Stamp continuation of the suit. This error was Report as well as Counsel for the corrected and the review application was respondents. allowed vide order dated 28.5.2008. 14. For deciding this point it will be 11. Sri Sankatha Rai, learned essential to look into the substantive counsel for the appellant has submitted provisions meant for filing of Second before the Court that the impugned Appeal as contained under Section 100 as judgment and decree dated 29.3.2008 is well as Orders 41 and 42 of the C.P.C. barred by principle of res judica as once which talks about the appeal from original defendants appellants application for as well as from appellate decrees. Section abating the suit under Section 5 (2) of the 100 as well as Order 42 of the C.P.C. are U.P. Consolidation of Holdings Act has reproduced below:- been rejected then on the same set of facts and for the same reason the impugned Section 100. Second appeal-(1) Save order could not be passed. In support of as otherwise expressly provided in the his submissions he has placed reliance body of this Code or by any other law for upon the judgment of Apex Court the time being in force, an appeal shall lie reported in AIR 1960 SC 941 Satya to the High Court from every decree Narain Ghosal and others Vs Deo Raji passed in appeal by any Court subordinate Devi and others. to the High Court, if the High Court is satisfied that the case involves a 12. Apart from the above substantial question of law. submissions learned counsel for the (2) An appeal may lie under this appellant has made many other section from an appellate decree passed submissions but that will be discussed ex parte. later on if the occasion so arises as this (3) In an appeal under this section, Court at present intends to decide the the memorandum of appeal shall precisely preliminary objections raised by the state the substantial question of law Stamp Reporter and the learned counsel involved in the appeal.