Mamuda Khateen and Others vs Beniyan Bibi and Others

This Judgment has been overruled by : Shyam Sundar Sarma Vs. Pannalal Jaiswal and Others, AIR 2005 SC 226 : (2004) 5 CTC 274 : (2005) 181 ELT 163 : (2005) 141 PLR 92 : (2004) 9 SCALE 270 : (2005) 1 SCC 436 : (2004) AIRSCW 6513 : (2004) 8 Supreme 330

Sankar Prasad Mitra, C.J.—This matter has been referred under Chapter VII, Rule 2 of the Appellate Side Rules to a larger Bench by a Division Bench consisting of Mr. Justice A, C. Gupta and Mr. Justice S. C. Deb for a decision on the following question:

Is an order rejecting the memorandum of appeal following the rejection of application u/s 5 of the Limitation Act for condonation of the delay in filing the appeal a decree ?

In the instant case, the proposed appeal to the first appellate Court, namely, the Court of the District Judge, was barred by limitation. An application was made u/s 5 of the Limitation Act for condonation of delay and the memorandum of appeal was sought to be filed along with the application. The application u/s 5 was rejected. It also appears that an order was made rejecting the memorandum of appeal. The question is whether the order rejecting the memorandum following the rejection of the application u/s 5 is a decree.

The referring Bench has noted a few conflicting decisions of this Court. In Sudhansu Bhusan Pandey v. Majhe Bibi, reported in (1938) 42 Cal WN 72 Mr. Justice Biswas expressed a tentative view that an order rejecting the memorandum of appeal would be a decree.

In Rakhal Chandra Ghosh v. Ashutosh Ghosh, (1913) 17 CWN 807 a Division Bench of this Court held that an order by an appellate Court rejecting an appeal before it has been admitted, on the ground that it was presented out of time, is a decree within the meaning of the definition of Sub-section (2) of Section 2 of the Code of Civil Procedure.

A contrary view was taken by another Division Bench. In Jnanadasundari Shaha Vs. Madhabchandra Mala, ). It was held that an order rejecting a memorandum of appeal, written on paper insufficiently stamped, for non-payment of the deficit court-fee within the time allowed by the Court, was not a decree within the meaning of Sub-section (2) of Section 2 of the Code.

This judgment in Jnanadasundari Shaha Vs. Madhabchandra Mala, was followed by a Division Bench of Mr. Justice Nasim AH and Mr. Justice Henderson in Sm. Charusila Dassi Vs. Abhilas Bauri and Others, . This Division Bench also held that an order rejecting the memorandum of appeal was not a decree.

It seems to us that when an appeal is barred by limitation and an application is made u/s 5 of the Limitation Act for condonation of the delay along with the memorandum of appeal, until the application u/s 5 is allowed the appeal cannot be filed or admitted at all. In other words, till a favourable order is made on the application u/s 5 the appeal is non est. In that event, the question of rejecting a memorandum of appeal does not arise at all at this stage.

If the application u/s 5 be rejected the order rejecting the application cannot be a decree. And the order rejecting the memorandum of appeal is merely an incidental order.

Our answer therefore to the question referred to us is that an order rejecting the memorandum of appeal following the rejection of an application u/s 5 of the Limitation Act for condonation of the delay in filing the appeal is not a decree but an order against which an application in revision u/s 115 of the Code may lie but no appeal under Order 43, Rule 1 of the Code can be preferred.

In the premises aforesaid, the appeal is dismissed. There will be no order as to costs.

We are told that the appellants have also made an application u/s 115 of the Code read with Section 5. They would be at liberty to proceed with the said application if so advised.

Sabyasachi Mukharji, J.

I agree.

Salil Kumar Datta, J.

I agree.