Smt. Prem Wati and Another vs Smt. Munni Devi alias Minakshi and Another

Ran Vijai Singh, J.—The present second appeal has been filed by the defendant-appellants against the judgment and order dated 13.8.2008. passed by Additional District Judge, Court No. 8, District Mathura arising from Original Suit No. 174 of 2006 in between Munni Devi and Anr. v. Smt. Premwati and Anr. vide judgment and order dated 13.8.2008, appellant''s Appeal No. 176 of 2008 has been dismissed as barred by time.

The stamp reporter has reported that second appeal is not maintainable against the said judgment.

I have heard Sri R.K. Rathore, learned Counsel for the appellants.

Learned Counsel for the appellants has submitted before this Court that the report given by the stamp report is wrong and the second appeal is maintainable for the simple reason that dismissal of an appeal for the reason of delay in its presentation after disposal of an application for condonation of delay is in substance and effect a confirmation of a decree appealed against, therefore, the second appeal lies. In support of his submissions, he has placed reliance upon the Full Bench decision of the Kerala High Court in Thambi Vs. Mathew and Another, wherein it was held:

In the present case, the appeal was dismissed as barred, by limitation. That it was an appeal even though barred by time is clear from Mela Ram and Sons Vs. The Commissioner of Income Tax Punjab, , where Venkatarama Ayyar, J., speaking for the Court, after referring to AIR 1932 165 (Privy Council) Raja Kulkarni v. State of Bombay AIR 1984 SC 73 and Promo Nath Roy v. N.A. Lee AIR 1921 Cal 415, held that "an appeal presented out of time is an appeal, and an order dismissing it as time barred is one passed in appeal." There can be no dispute then that in law what the respondent did was to file an appeal and that the order dismissing it as time barred was one disposing of the appeal.

That decision was based on the decision of the Supreme Court in Rani Choudhury Vs. Lt.-Col. Suraj Jit Choudhury, In that decision, another Supreme Court decision was taken into consideration in The Board of Revenue, Madras Vs. Raj Brothers Agencies, It was further held:

An appeal registered under Rule 9 of Order XLI, C.P.C. is to be disposed of according to law and a dismissal of the appeal for the reason of delay in its presentation after the dismissal of an application for condonation of delay is in substance and effect a confirmation of the decree appealed against.

I can see no reason for holding that there is a merger of replacement of judgment only in the first two cases and not in the last one. In my opinion, it makes no difference whether the dismissal is summary or otherwise and there is a judgment of the High Court in all the three cases.

...it was further observed:

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 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.

Dismissal of an appeal on the ground of limitation was thus held as amounting to a confirmation of the decree of the trial court on the merits of the case and the decision of the appellate court is held to be res judicata on the question of title raised in the connected appeal. This decision of the Supreme Court would clearly indicate that the decree of the trial court gets merged in the appellate court''s decree even when the appeal is dismissed on a preliminary ground or as time-barred.

Learned Counsel for the appellants submitted that second appeal lies because if the rejection of memo of appeal is an immediate consequence of the rejection of the application u/s 5 of Limitation Act, which resulted in directly the confirmation of the judgment and decree passed by the trial court.

Now the Court has to examine whether the judgment under appeal is a judgment in the eye of law and whether the second appeal will lie against a formal order passed on the dismissal of Section 5 application as has been done in the present case. Section 100 of CPC confers the remedy for filing second appeal, which runs as under:

Section 100. C.P.C.--Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this Section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

The procedure for filing second appeal has been mentioned under Order XLI and XLII of the Code of Civil Procedure. If Section 100 of CPC is read with Order XLI and XLII together, then it will transpire that second appeal will lie only against the judgment and decree and not otherwise.

Now, the question would be whether rejection of an application filed u/s 5 of Indian Limitation Act is a judgment in the eye of law as defined u/s 2(9) read with Order XLI, Rule 32 of the CPC and the copy of the formal order annexed with memo of appeal amounts to a decree as defined u/s 2(2) of the CPC for the purposes of filing second appeal.

Section 2(2) of CPC is reproduced below:

"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include--

(a) any adjudication from which an appeal lies as an appeal from an order; or

(b) any order of dismissal for default.

Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

From the bare perusal of Section 2(2) of Code of Civil Procedure, it transpires that for becoming a decree, there must be an adjudication in the suit and such adjudication must have been determined the rights of the parties with regard to all or any of the matters in the controversy of the suit and such determination must be of a conclusive nature. Likewise for the judgment, the order has to be tested in view of the definition given u/s 2(9) of the CPC read with Rule 32 of Order XLI of the same Code. The Full Bench decision of Calcutta High Court in Mamuda Khateen and Others Vs. Beniyan Bibi and Others, , has observed as under:

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 incidental order against which an application in revision u/s 115 of the Code may lie but no appeal under Order XLI II, Rule 1 of the Code can be preferred.

...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 alongwith 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 favoruable 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.

In another Full Bench decision of the Orissa High Court in Ainthu Charan Parida Vs. Sitaram Jayanarayan Firm and Another, it was held as under:

An order rejecting a memorandum of appeal or dismissing an appeal following the rejection of an application u/s 5 of the Limitation Act for condonation of delay in preferring the appeal is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure. It is only an order against which an application in revision u/s 115 of the Code may lie but no appeal under Order XLIII, Rule 1 of the Code can be preferred.

The Apex Court in the case of Ratansingh v. Vijaysihgh and Ors. AIR 2001 SC 279 : 2001 (1) AWC 403 (SC), has held as under:

In order that decision of a Court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time barred is also not a decree. We are aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the meaning of the said definition. We are also aware of the contrary decisions rendered by High Courts on the same point. Dealing with some of those decisions a Full Bench of the Calcutta High Court (S. P. Mitra, C.J., Sabyasachi Mukherjee, J. (as he then was) and S.K. Datta, J.), has held in Mamuda Khateen and Others Vs. Beniyan Bibi and Others, that "if the application u/s 5 of the Limitation Act was rejected the resultant order cannot be decree and the order rejecting the memorandum of appeal is merely an incidental order." The reasoning of the Full Bench was that when an appeal is barred by limitation the appeal cannot be admitted at all until the application u/s 5 of the Limitation Act is allowed and until then the appeal petition, even if filed, will remain in limbo. If the application is dismissed the appeal petition becomes otiose. The order rejecting the memorandum of appeal in such circumstances is merely an incidental order. 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.

A learned single Judge of this Court in Second Appeal No. 1078 of 1995, Central Board of Secondary Education, New Delhi v. J.A.S. Educational Association and Anr. decided on 28.7.1997, dealing with such matter has held that second appeal will not be maintainable against an order rejecting the application u/s 5 of the Indian Limitation Act while filing an appeal. His Lordship has taken the view that revision will be maintainable. The similar view has been taken by the Full Bench of Karnataka High Court in Commissioner, Hubli-Dharwad Municipal Corporation v. Shrishail and Ors. AIR 2004 Kar 75, has held as under:

In view of the above decision of the Supreme Court, the question for reference is answered by holding that an order rejecting the Memorandum of Appeal following rejection of application for condonation of delay in filing the appeal u/s 5 of the Limitation Act, would not be a decree passed in appeal and hence, second appeal would not lie u/s 100, C.P.C. and order would be revisable u/s 115, 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 XLI, Rule 35 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.

These conflicting views of the various High Courts as well as the Apex Court have again been considered by the Apex Court in the case of Shyam Sundar Sarma Vs. Pannalal Jaiswal and Others, wherein the Hon''ble Apex Court held as under:

The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi v. Mathew 1987 (2) KLT 848. Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes and an order dismissing the appeal was a decree that could be the subject of a second appeal. It was also held that Rule 3A of Order XLI, introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal registered under Rule 9 of Order XLI of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed alongwith an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal.

Learned Counsel for the appellant relied on the Full Bench decision of the Calcutta High Court in Mamuda Khateen and Others Vs. Beniyan Bibi and Others, , to contend that an order rejecting a time barred memorandum of appeal consequent upon refusal to condone the delay in filing that appeal was neither a decree nor an appellable order. On going through the said decision it is seen that though the Full Bench referred to the divergent views on that question in the Calcutta High Court prior to the rendering of the decision of this Court in Messrs Mela Ram and Sons (supra) had not considered the decisions of this Court in Raja Kulkarni (supra) and in Messrs Mela Ram and Sons (supra), in coming to that conclusion. In fact it is seen that there was no discussion on that aspect as such, though there was a reference to the conflict of view in the decisions earlier rendered by the Calcutta High Court. Since the ratio of that decision runs counter to the principle laid down by this Court in Messrs Mela Ram and Sons (supra), obviously the same could not be accepted as laying down a correct law.

Learned Counsel placed reliance on the decision in Ratansingh v. Vijaysingh and Ors. (2001) 1 SCC 469 : 2001 (1) AWC 403 (SC), rendered by two learned Judges of this 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 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 Messrs Mela Ram and Sons and Sheodan Singh (supra), were not brought to the notice of their Lordships. The principle laid down by a three Judge Bench of this Court in Mela Ram and Sons (supra) and that stated in Sheodan Singh (supra), 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. Of course, their Lordships have stated that they were aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the definition of a decree obtaining in the Code. Thereafter, noticing the decision of the Calcutta High Court above referred to their Lordships in conclusion apparently agree with the decision of the Calcutta High Court. Though the decision of the Privy Council in Nagendra Nath Dev v. Suresh Chandra Dev (supra), was referred to, it was not applied on the ground that it was based on Article 182 of the Limitation Act, 1908 and there was a departure in the legal position in view of Article 136 of the Limitation Act, 1963. But with respect, we must point out that the decision really conflicts with the ratio of the decision in Messrs Mela and Sons and Sheodan Singh (supra) and another decision of this Court rendered by two learned Judges in Rani Choudhury Vs. Lt.-Col. Suraj Jit Choudhury, In M/s. Essar Constructions Vs. N.P. Rama Krishna Reddy, , brought to our notice two other learned Judges of this Court, left open the question. Hence, reliance placed on that decision is of no avail to the appellant.

In view of recent decision of the Apex Court in Shyam Sunder Sharma''s case (supra), now undisputedly, the rejection of an application for condoning the delay in filing the appeal is a decision in the appeal. In view of that, the objection raised by stamp reporter is overruled and the second appeal is held to be maintainable.

Let the matter be listed as fresh within a week from the date of delivery of the judgment before the appropriate court.