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TMI Blog2005 (7) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... and was decreed against them. The defendant No. 5 filed the written statement and supported the case of the plaintiff, claiming himself to be the co-owner of the property in dispute and absented himself from further proceedings of the case. The aforesaid Original Civil Suit No. 108 of 1983 was, thus, contested only by late Hameed Shah defendant No. 1 father of the respondents No. 1 to 4. 3. The plaintiff claimed the ownership of the property in dispute on the basis of the sale deed executed by Smt. Mariyam, who was the mother of defendant No. 1 and 2 and Smt. Basheeran, who was the mother of defendants No. 3 and 4. Both these transferors had inherited the property in dispute from their father and mother, and being the exclusive owners in possession had executed the sale deed dated 18.3.1949 in favour of the plaintiffs who were put in possession of the disputed property. 4. The father of the respondents No. 1 to 4, Hameed Shah did not challenge the execution of the sale deed dated 18.3.1949, but pleaded that he had perfected his title by adverse possession. 5. The trial court dismissed the original suit No. 100 of 1983 by its judgment and decree dated 10.3.1999. Being aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being barred by time. Subsequently, on 2.7.1999 the disputed property in question was sold on 17.7.1999 7. Being aggrieved by the impugned order dated 2.7.1999, the petitioners filed the present writ petition under Articles 226/227 of the Constitution of India impleading respondents Nos. 6 7 the purchasers of the property in dispute on the grounds, inter alia, that the impugned judgment and order was not reasonable and had been passed without application of judicial mind and was arbitrary, unwarranted and capricious in nature and as such was not a reasonable judgment as defined under Section 2(9) of the Code of Civil Procedure without following the correct procedure laid down therein, and also that the application under Section 5 of the Limitation Act was rejected summarily, without issuing notice to the respondents and in absence of any affidavit in rebuttal controverting the averments made in the affidavit filed in support of the application under Section 5 of the Limitation Act which was a mistake apparent on the face of the record. 8. Learned counsel for the petitioners in support of his case has cited the decisions in Madan Pal v. A.D.J., Meerut and Ors., reported 1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 3 and 3A of Civil Procedure Code (5) 1908, holding that the decree dismissing the appeal in limine may not be binding on the respondents for the reasons that he had no notice of the appeal or without notice to him, but legal effect of the order rejecting the appeal being barred by time amounted to confirmation of a decree of the appeal after hearing the respondents and the order of the appellant court was to be taken to fall under the definition of decree within the meaning of Section 2 of the Code. In para 13A the judgment of Hon'ble Supreme Court in the case of Kewal Ram, reported in AIR, 1987, page 1304 has been referred to, wherein it was held that a decree passed without notice to the respondents, will not be binding on him, but His Lordship found difficulty in accepting the preposition when an appeal was dismissed in limine that there was no decree and as such dismissal was of no consequence. In the case of, Mela Ram Sons v. I.T.Commr. reported in 1956, S.C. 367( (S) AIR V.48 65 May), in relation with the matter in appeal under Section 30(1) of Income Tax Act, 1992 against an order of dismissal of an appeal being barred by limitation, their Lordships held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prasad and Ors. v. Jagdish Prasad and Ors., reported in UPLBEC, 2005 (1) page 972 and in the case of Kunhayammed and Ors. v. State of Kerla and Anr., , in paras 12, 42 and 43, wherein it has been held in paragraph 12 as under :- The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by inferior Court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding nevertheless its finality is put in jeopardy. Once the superior Court has disposed of the lis before it either way -- whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, tribunal or the authority below . I find that in the present case the appellate court has neither set aside nor modified nor confirmed the judgment and decree of the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. We have no doubt that the decisions rendered by the High Courts holding the contrary view do not lay down the correct principle of law 14. The above said decisions cited by the respondents given under the facts and circumstances of the respective cases do not apply to the present case. Since then much water has flown. The current judicial thinking as also expressed in the case of G. Ramegowda Major and Ors. v. Special Land Acquisition Officer, reported of Hon'ble the Supreme Court while construing Section 5 of the Limitation Act is that the expression Sufficient Cause must receive a liberal construction by the court deciding the question keeping in mind that where there is no gross negligence or deliberate inaction or lack of bonafide is not imputable to the party seeking condonation of delay then the application under Section 5 of the Limitation Act must receive a liberal construction and the discretion in the Section has to be exercised to advance substantial justice and not to shut out the litigants. 15. The other ground raised by the learned counsel for the respondents that the Second Appeal lies under Section 100 of Civil Produce of Code against the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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