Gauhati High Court
Page No.# 1/ vs Mrs Firoja Begum And 4 Ors on 18 June, 2025
Page No.# 1/10
GAHC010118822025
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/78/2025
SAFIQUE UDDIN AHMED AND 3 ORS
S/O LATE SAMSUR NAHAR BEGUM, R/O HEDAYATPUR, GUWAHATI,
KAMRUP (M), ASSAM, PIN-781003
2: RAFIQUE UDDIN AHMED
S/O LATE SAMSUR NAHAR BEGUM
R/O HEDAYATPUR
GUWAHATI
KAMRUP (M)
ASSAM
PIN-781003
3: TAFIQUE UDDIN AHMED
S/O LATE SAMSUR NAHAR BEGUM
R/O HEDAYATPUR
GUWAHATI
KAMRUP (M)
ASSAM
PIN-781003
4: MUSTT. NURAN NEHAR BEGUM
W/O TALZIMUR RAHMAN
D/O LATE NAZIMUN NESSA AND LATE SADER ALI
R/O ISLAMPUR
GUWAHATI
KAMRUP (M)
PIN-78100
VERSUS
MRS FIROJA BEGUM AND 4 ORS
W/O MD. OSMAN ALI, R/O VILL- GARIGAON RANGAMATI, NEAR BILLAL
MASJID, P.S.- JALUKBARI, KAMRUP (M), ASSAM, PIN-781012
Page No.# 2/10
2:MRS. KHUDEZA BEGUM
W/O SUKUR ALI
R/O VILL- GARIGAON GAONBURHAPARA
P.S.- JALUKBARI
KAMRUP (M)
ASSAM
PIN-781012
3:MRS. KHURSEDA BEGUM
W/O MD. HABIBUR RAHMAN
R/O HOUSE NO. 128 DWARANDHA
SIX MILE
P.S.- DISPUR
KAMRUP (M)
ASSAM
PIN-781023
4:MD. JEHIRUL ISLAM
R/O VILL- GARIGAON MEDHIPARA
P.S.- JALUKBARI
KAMRUP (M)
ASSAM
PIN-781012
5:MD. IMRAN KHAN
R/O VILL- GARIGAON MEDHIPARA
P.S.- JALUKBARI
KAMRUP (M)
ASSAM
PIN-78101
Advocate for the Petitioner : MS. M BAISHYA,
Advocate for the Respondent : MR. R K BHUYAN (FOR CAVEATOR), N BHUYAN (FOR
CAVEATOR),MR. R DAS (FOR CAVEATOR),MR. S A SINGH (FOR CAVEATOR),MR A ZAMAN
(FOR CAVEATOR)
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
18.06.2025
Heard Mr. J. Deka, learned counsel for the petitioners and Mr. R.K.
Bhuyan, learned counsel for the respondents.
Page No.# 3/10
2. This civil revision petition, under Article 227 of the Constitution of India,
read with Section 151 of the C.P.C., is directed against the order dated
09.05.2025, passed by the learned Civil Judge (Senior Division) No. 1, Kamrup
(M) at Guwahati (first appellate court hereinafter), in Misc. (J) Case No.
426/2025, arising out of Misc. Appeal No. 10/2025.
3. It is to be noted here that vide impugned order, dated 09.05.2025, the
learned first appellate court had refused to condone the delay of 20 days in
preferring the connected appeal and thereby dismissed the appeal.
4. The background facts, leading to filing of the present appeal, can be
briefly stated as under:-
“The petitioners herein, being the third party, filed a petition under Order
21 Rule 97 read with Order 21 Rule 26 also read with Section 151 of the
C.P.C., in the Title Execution Case No. 24/2022, pending before the
learned Civil Judge (Junior Division) No. 2, Kamrup (M) at Guwahati (trial
court herein after), for determination of all the questions relating to their
right, title, interest and possession over the plot of land, measuring 3
Kathas 17 Lechas 1 Powa, covered by Dag No. 1192 of K.P. Patta No. 187
of village Dehan Garigaon, under Jalukbari Mouza and the houses
standing therein.
Upon the said petition, the learned executing court had registered a
Misc. (J) Case No. 502/24 and then hearing both the parties, the learned
trial court, vide order dated 07.03.2025, had dismissed the petition.
Being aggrieved with the said order dated 07.03.2025, the
petitioners herein had filed one Misc. Appeal No. 10/2025 on various
grounds and also filed an application for condoning the delay of 20 days
Page No.# 4/10in preferring the said appeal, that had occurred due to delay in obtaining
the certified copy of Misc. (J) Case No. 502/24 and also due to the
ailments the petitioner No. 4, who was suffering from Asthma and severe
respiratory disorders along with Arthritis for which, she could not move in
time, and therefore, the appeal could not be filed within the stipulated
period.
Thereafter, hearing both the parties, the learned first appellate court
was pleased to dismiss the petition for condoning the delay and
consequently, the appeal also came to be dismissed.”
5. Being aggrieved, the petitioners herein preferred the present civil revision
petition, under Article 227 of the Constitution of India, read with Section 151 of
the C.P.C., against the order dated 09.05.2025, passed by the learned appellate
court in Misc. (J) Case No. 426/2025.
6. During the course of hearing, the question of maintainability of this civil
revision petition arises as on refusal to condone the delay of 20 days by the
learned first appellate court, the appeal also came to be dismissed which
amounts to a decree. Accordingly, both the parties were heard.
7. Mr. Deka, learned counsel for the petitioners, referring to following
decisions of this court as well as of Hon’ble Supreme Court, submits that this
civil revision petition is maintainable as the petitioners have preferred one Misc.
Appeal along with the application for condonation of delay and therefore, it is
contended to admit this civil revision petition.
(i) State of Assam and Others vs. Naresh Ch. Das and
Another, reported in AIR 1983 Gau 24;
(ii) Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal
Page No.# 5/10
and Another, reported in (1997) 3 SCC 694;
(iii) Shreenath and Another vs. Rajesh and Others,
reported in (1998) 4 SCC 543;
(iv) Asgar and Others vs. Mohan Varma and Others,
reported in (2020) 16 SCC 230;
(v) Ajoy Kumar Shaw and Others vs. Uttam Kumar Shaw
and Others, reported in 2010 SCC OnLine Cal 1656;
(vi) Chandi Prasad and Others vs. Jagdish Prasad and
Others, reported in (2004) 8 SCC 724;
(vii) Shyam Sundar Sarma vs. Pannalal Jaiswal and Others,
reported in (2005) 1 SCC 436;
(viii) Padma Sundara Rao vs. State of T.N., reported in
(2002) 3 SCC 533;
(ix) Union of India vs. Chajju Ram, reported in (2003) 5
SCC 568;
(x) Amar Nath Om Prakash vs. State of Punjab, reported in
(1985) 1 SCC 345; and
(xi) Deepa Newar vs. Deepak Borthakur and Another,
reported in (2017) 3 GLR 295.
8. Per-contra, Mr. Bhuyan, learned counsel for the respondents referring to
the decisions of Hon’ble Supreme Court in the case of Shyam Sundar Sarma
vs. Pannalal Jaiswal and Others, reported in (2005) 1 SCC 436 and
Babulal vs. Raj Kumar and Others, reported in (1996) 3 SCC 154,
submits that as the application for condoning the delay in filing the appeal has
been dismissed and consequently, the appeal is also dismissed, the same
amounts to a decree and against such a decree, only appeal is maintainable and
as such, the present petitioners ought to have preferred a second appeal under
Section 100 of the C.P.C. before this court and having not been done the same,
Page No.# 6/10
the petitioners cannot maintain the present revision petition before this court.
8.1. Mr. Bhuyan further pointed out that the petitioners herein, instead of filing
Misc. Appeal before the learned first appellate court, they could have preferred
a regular first appeal against the order of the learned executing court and
instead of doing the same, they had preferred the Misc. Appeal before the
learned first appellate court.
9. Having heard the submissions of learned counsel for both the parties, I
have carefully gone through the petition as well as the documents placed on
record and also gone through the decisions referred by learned counsel for both
the parties.
10. It is not in dispute that if an appeal is preferred along with a petition for
condoning the delay and if the condonation petition is dismissed and
consequently, the appeal is also dismissed, the same amount to a decree and
against such a decree, only remedy available is the second appeal under Section
100 of the C.P.C.
11. This aspect was dealt with by a three Judges Bench of Hon’ble Supreme
Court in the case of Shyam Sundar Sarma (supra) and also in the case of
The Koushik Mutually Aided Cooperative Housing Society vs.
Ameena Begum and Another, in Special Leave Petition (C) No.
5489/2021.
12. In the case of Shyam Sundar Sarma (Supra), it has been categorically
held that an appeal when dismissed on refusal to condone the delay is
nevertheless a decision in appeal. And in the case of The Koushik Mutually
Aided Cooperative Housing Society (Supra) it has been held that when
an application is filed seeking condonation of delay for setting aside an ex-parte
Page No.# 7/10
decree and the same is dismissed and consequently, the petition is also
dismissed, an appeal under Order XLIII Rule 1(d) of the C.P.C. is maintainable.
13. However, Hon’ble Supreme Court in the case of Ratansingh vs. Vijay
Singh, reported in AIR 2001 SC 279, referring to ‘decree’ as defined in Section
2(2) of the C.P.C. held that an order rejecting the Memorandum of Appeal
following rejection of application for condonation of delay in filing the appeal
under Section 5 of the Limitation Act, would not be a decree passed in appeal
and hence, second appeal would not lie under Section 100 of the C.P.C. and the
order would be revisable under Section 115 of the C.P.C. When once it is held
that order dismissing appeal as barred by time, is not a decree, the question of
drawing a decree under Order 41, Rule 35 of the C.P.C. would not arise and
mere drawing of decree in the prescribed form would not make such an order a
decree and any decree drawn pursuant to such an order is immaterial and
would not debar the aggrieved party to file revision.
14. But, in the case of Shyam Sundar Sarma (supra), a three Judges Bench
has held that the decision in Ratansingh (supra) was rendered by two
learned Judges of that Court and pointed out that it was held therein that
dismissal of an application for condonation of delay would not amount to a
decree and, therefore, dismissal of an appeal as time-barred was also not a
decree. That decision was rendered in the context of Article 136 of the
Limitation Act, 1963 and in the light of the departure made from the previous
position obtaining under Article 182 of the Limitation Act, 1908. But we must
point out with respect that the decisions of this Court in Mela Ram and Sons
vs. CIT, reported in AIR 1956 SC 367 and Sheodan Singh vs. Daryao
Kunwar, reported in AIR 1966 SC 1332, were not brought to the notice of
their Lordships. The principle laid down by a three-Judge Bench of this Court in
Page No.# 8/10
Mela Ram (supra) and that stated in Sheodan Singh (supra) by a four
Judge-Bench was, thus, not noticed and the view expressed by the two-Judge
Bench, cannot be accepted as laying down the correct law on the question.
15. Notably, in the case of Mela Ram and Sons (supra), Hon’ble Supreme
Court held that an appeal presented out of time is an appeal and an order
dismissing it as time-barred is one passed in an appeal. And in the case of
Sheodan Singh (supra), one of the questions that arose was whether the
dismissal of an appeal from a decree on the ground that the appeal was barred
by limitation was a decision in the appeal. Then it was held as under: –
“We are therefore of opinion that where a decision is given
on the merits by the trial court and the matter is taken in
appeal and the appeal is dismissed on some preliminary
ground, like limitation or default in printing, it must be
held that such dismissal when it confirms the decision of
the trial court on the merits itself amounts to the appeal
being heard and finally decided on the merits whatever may
be the ground for dismissal of the appeal.”
16. A Full Bench of the Kerala High Court in Thambi vs. Mathew, reported
in (1987) 2 KLT 848 (FB), also had occasioned to deal with the issue and
considering the relevant decisions on the issue, held that an appeal presented
out of time was nevertheless an appeal in the eye of the law for all purposes
and an order dismissing the appeal was a decree that could be the subject of a
second appeal. This decision of Kerela High Court was discussed and taken note
of by Hon’ble Supreme Court in the case of Shyam Sundar Sarma (supra).
17. Thus, the proposition of law, that can be crystalized from the illuminating
discourse noted above is that an appeal filed along with an application for
Page No.# 9/10
condoning the delay in filing that appeal when dismissed on the refusal to
condone the delay is nevertheless a decision in the appeal.
18. But, since with the dismissal of the application for condonation of delay
the appeal is also dismissed and the same amounts to a decree and against
such a decree the remedy available is appeal and therefore, this court is unable
to agree with the submission of Mr. Deka, the learned counsel for the
petitioners, that the present petition under Section 115 of the C.P.C. and Article
227 of the Constitution of India is maintainable.
18.1.I have carefully gone through the decisions referred by Mr. Deka, learned
counsel for the petitioner. Even in the case of Brahmdeo Chaudhary (supra)
and in Shreenath and Another (supra) and in Asgar and Others
(supra) and in Ajoy Kumar Shaw and Others (supra) it has been held
that order passed under Order 21 Rule 98 amounts to a decree and subject to
an appeal. In the case of Chandi Prasad and Others (supra), it was held
that when an appeal is dismissed on the ground that delay in filing the same is
not condoned, the doctrine of merger shall not apply. From a perusal of these
decisions it cannot be logically concluded that civil revision petition would lie
against the order passed in refusal to condone the delay in filing appeal.
19. Thus, considering the principles laid down by a three-Judges Bench of
Hon’ble Supreme Court in the case of Mela Ram (supra); in the case of
Shyam Sundar Sarma (supra); by a four Judges Bench in the case of
Sheodan Singh (supra); and also in view of a Full Bench decision of Kerela
High Court in the case of Thambi (supra), this court is inclined to hold that an
order dismissing the appeal was a decree that could be the subject of a second
appeal.
Page No.# 10/10
20. In the result, this petition stands dismissed. However, liberty will remain
with the petitioner to approach this court again by filing appropriate petition.
The parties have to bear their own costs.
JUDGE
Comparing Assistant