Orissa High Court: A Single Judge Bench of Dr A.K. Rath, J., dismissed a writ petition challenging the order passed by the Additional District Judge, whereby the Appellate Court had dismissed the application under Section 5 of the Limitation Act for condonation of delay.
The petitioners were aggrieved by this order and their counsel Mr Prasanna Ku. Parhi, contended that the delay was justified and the petitioners were prevented by sufficient cause in not filing the appeal on time and the Appellate Court had dismissed the same on an untenable and unsupportable ground.
The seminal question that hinged for consideration was that whether an order rejecting a memorandum of appeal or dismissing an appeal following rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal was a decree or order.
The Court placing reliance on the case of Fakira Mishra v. Biswanath Mishra, 2015 SCC OnLine Ori 313, held that an appeal filed along with an application for condonation of delay in filing that appeal when dismissed on refusal to condone the delay is a decree within the meaning of Section 2(2) of the Code of Civil Procedure. [Jitendra Naik v. Radhyashyam Naik, 2018 SCC OnLine Ori 432, dated 10-12-2018]