S.N. Jha, J.
1. This civil revision has been referred to Division Bench for decision on the point as to whether an order dismissing an appeal on account of limitation as being time-barred and not on merits is appealable. The significance of the point is that revision under Section 115 of the Code of Civil Procedure is maintainable only when appeal does not lie against the order. As the point involves a pure question of law, it is not necessary to set out the facts of the case. It may only be stated that the petitioners, who were plaintiffs in the court below, instituted title suit No. 3 of 1979 for declaration about a deed of gift as being null and void. The plaint was rejected in view of the provisions of Section 4(b) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, which bars suit after publication of notification regarding preparation of consolidation scheme under Section 3(1) of the Act. The petitioners challenged the order by way of revision, C.R. No. 605 of 1980, in this Court. By judgment dated 7.12.81 reported in AIR 1982 Patna 75 this Court held that the order of rejection of the plaint amounted to decree and was, therefore, appealable. After dismissal of the civil revision as being not maintainable, the petitioners filed appeal, Title Appeal No. 69 of 1982, before the District Judge, Bhagalpur, on 11.10.82 along with an application for condonation of delay under Section 5 of the Limitation Act. By the impugned order dated 27.4.84, the District Judge rejected the limitation petition and dismissed the appeal giving rise to this revision.
2. Before coming to the point, it may be stated that earlier time-barred appeals (accompanied by condonation petition) were often admitted subject to objection as to limitation being raised at the time of hearing. The Law Commission in its 14th and 27th Reports noted that the practice of admitting the time-barred appeals without first deciding the question of limitation had been disapproved by the Privy Council. It also noted that following the decision of the Privy Council some of the High Courts had already made appropriate amendment in the rules. The Law Commission, accordingly suggested introduction of the provisions which are now contained in Rule 3-A of Order XLI of the Code of Civil Procedure 'for securing the final determination of the question as to the limitation even at the stage of admission of the appeal.' The relevant parts of Rule 3-A are as follows:
(1) Where an appeal is presented after the expiry of the period of limitation specified there for it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he has sufficient cause for not preferring the appeal within such period.
(2) If the Court sees no reason to reject the application without issue of notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal be under Rule 11 or Rule 13 as the case may be.
The eventuality of determining the question of limitation as envisaged and mandated by Sub-rule (2)'before it (court) proceeds to deal with the appeal' will, of course, arise only when an application under Section 5 of the Limitation Act has been filed. This Court in AIR 1983 Patna 189, has held that the provisions as contained in Sub-rule (i) are not mandatory and the application for condonation of delay can be filed later also. In cases where application for condonation of delay is not filed a time-barred appeal has to be dismissed under Section 3 of the Limitation Act even if the defendant does not take the plea. Where the limitation petition is rejected, there also the appeal has to be, consequently, dismissed as time barred. There is, thus, no question of its-reaching the stage of Rule 11 or Rule 13. Although in practice where the consequential order is not passed it is the order rejecting the limitation petition, which is required to be challenged and in that situation a revision will lie against the order, but there is no bar to the simultaneous dismissal of the appeal.
3. The question as to whether dismissal of a time-barred appeal on the ground of limitation is appealable involves the question and this is the core of the matter-whether the order amounts of decree, for there cannot be any dispute that an appeal shall lie if it amounts to decree. 'Decree' has been defined in Section 2(2) of the Code, in the following manner:
'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 of 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 omitted as being not relevant)
The essential elements of a decree, thus, are that there should be an adjudication, the adjudication must be made in a suit, it must determine conclusively the rights of the parties with regard to all or any of the matters in controversy in the suit and it should be formally expressed. The rejection of plaint and determination of any question under Section 144 of the Code are also deemed to be decree.
4. The order rejecting the memorandum of appeal as time barred is said to be appealable on the ground that the dismissal of appeal on account of limitation or the like, such as, non payment of deficit court fee, etc. comes within the ambit of the first part of the definition of the term 'decree' or, alternatively, that it amounts to rejection of memorandum of appeal under order VII, Rule 11 read with Section 107(2) of the Code and hence deemed to be decree. There has been sharp divergence of opinion on the point. I will first notice the cases which have taken the contrary (sic) view, that is, have held that such orders are not appealable.
5. Reliance in support of the contrary view, i.e. in support of maintainability of this revision, has been placed of Mamuda Khateen v. Beniyan Bibi : AIR1976Cal415 and Ainthu Charan Parida v. Sitaram Jainarayan Firm : AIR1984Ori230 . Both are Full Bench decisions of the respective High Court. In the former, the Calcutta High Court observed:
It seems to us that when an appeal is barred by limitation and an application is made under Section 5 of the Limitation Act for condonation of the delay along with the memorandum of appeal, until the application under Section 5 is allowed the appeal cannot be filed or admitted at all. In other words, till a favourable order is made on the application under Section 5 in non est. In that event the question of rejecting the memorandum of appeal does not arise at all at this stage.
If the application under Section 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.
The Orissa High Court in the latter case, following the above said Calcutta case a Bombay case, Pallas Bank v. Baburao : AIR1954Bom43 , held:
The order rejecting the memorandum of appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal is not a decree but an order against which an application for revision under Section 115 of the Code may lie but no appeal order XL1II, Rule 1 of the Code can be preferred.
Two reasons were given for coming to the above conclusion. That there is neither conclusive determination nor any formal or final adjudication of right of the parties; and the unless delay is condoned no appeal can be said to be pending. A Division Bench of the Punjab & Haryana High Court in the case of Deshraj v. Om Prakash also appears to have taken the similar view and held that the appeal is not maintainable.
6. The view taken by the Calcutta High Court and the Orissa High Court in the above-mentioned cases that unless delay is condoned, the appeal is deemed is condoned, the appeal is deemed to be no nest in the eye of law appears to be in the teeth of the decisions of the Supreme Court. In Mela Ram and Sons v. Commissioner of Income Tax : [1956]29ITR607(SC) , appeals had been preferred by the assessee against the assessment orders passed by the Income Tax Officer before the Appellate Assistant Commissioner beyond time. The petition fro condonation of delay were rejected holding that there was no sufficient cause and consequently the appeals were dismissed in limine.. The assessee preferred appeals under Section 33 of the Income Tax Act to the Appellate Tribunal, which dismissed that same on the ground that the orders of the Assistant Commissioner were in substance passed under Section 30(2) and not under Section 31 and that no appeal lay against them under Section 33. The ground assigned was that Section 31 deals with only such appeals which are presented within the prescribed period or admitted after the delay, if any, has been condoned and since Section 33 give the right of appeal to the assessee from an order passed by Appellate Commissioner either under Section 28 or Section 31, the appeal before the Tribunal was not maintainable. Disapproving the reasonings the Supreme Court observed (at page 371):
A right of appeal is substantive right, and is a creature of the statute. Section 3091) confers on the assessee a right of appeal against certain orders and an order of assessment under Section 23 is one of them. The appellant, therefore, had a substantive right under Section 30(1) to prefer appeals against orders of assessment made by the Income Tax Officer. Then, we come to Section 30(2) which enacts a period of limitation within which this right is to be exercised. If appeal is not presented within that time, does that cease to be an appeal as provided under Section 30(1)?
It is well established that rules of limitation pertain to the domain of adjectival law, and that they operate duly to bar the remedy but not to extinguish the right. An appeal preferred in accordance with Section 30(1) must, therefore, be an appeal in the eye of law, though having been presented beyond the period of limitation mentioned in Section 30(2).
It is liable to be dismissed 'in limine'. There might be a provision in the statute that at the end of period of limitation prescribed, the right would be extinguished, as for example, Section 28, Limitation Act; but there is none such here.
On the other hand, in conferring a right of appeal under Section 30(1) and prescribing a period of limitation for the exercise thereof separately under Section 30(2), the Legislature has evinced an intention to maintain the distinction well recognised under the general law between what is a substantive right and what is a matter of procedural law. In Nagendra Nath v. Suresh
Chandra 1932 P.C. 165 AIR V. 19 at page 167(K), Sir Dinshaw Mulla construing the word 'appeal' in the third column of Article 182, Limitation Act, observed:
There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptance of the term, and that it is no less an appeal because it is irregular or incompetent.
These observations were referred to with approval and adopted by this Court, in 'Raja Kulkarni v. State of Bombay 1954 S.C. 73 AIR V. 41 at P. 74 (1). In Promotho Nath Roy v. W.A. Lee. 192.1 Cal 415AIR V. 8 (H) an order dismissing an application as barred by limitation after rejecting an application under Section 5 of the Limitation Act, to excuse the delay in presentation was held to be one 'passed on appeal' within meaning of Section 100, Civil P.C. on the principles laid down in these decisions it must be held that an appeal presented out of time is an appeal and the order dismissing it as time barred is one passed in appeal.
7. In coming to the above conclusion the Supreme Court also noticed with approval the following observations in the cases of (i) Commissioner of Income-tax v. Shahzadi Begum : [1952]21ITR1(Mad) , 'If the appeal is dismissed as incompetent or is rejected as it was filed out of time and no sufficient cause was established, it results in an affirmation of the order appealed against'; (ii) Gour Mohan Mallick v. Commissioner of Agricultural Income-tax : [1952]22ITR131(Cal) , 'An appellate order may not, directly and by itself, confirm or reduce or enhance or annual an assessment and may yet dispose of the appeal. It if does so, if is immaterial whether the ground is a finding that the appeal is barred by limitation or a finding that the case is not a fit one for extension of time of both' ; (iii) K.K. Porbundereallah v. Commissioner of Income-tax : AIR1952Bom157 , 'although the Appellate Assistant Commissioner did not hear the appeal on merits and held that the appeal was barred by limitation, his order was under Section 31 and effect of that order' was to confirm the assessment which had been made by the Income-tax Officer.'
8. Raja Kulkarni's case AIR 1954 S.C. 73, referred to above, was a case where an industrial court had made an award. The Mills Owners Association being dissatisfied with the Award had preferred appeal before the Appellate Tribunal. During the pendency of the appeal provocative speeches were made exerting the workers of the Textile Industries to go on strike which led to complaint under Section 27 of the Industrial Disputes (Appellate Tribunal) Act, 1950, ultimately resulting in the conviction of the appellants. Point was taken that appeal before the Appellate Tribunal was not competent as the same was barred by limitation and, therefore, the accused appellants could not be said to have contravened the said to have contravened the provisions of Section 24(b0 which prohibits a workman employed in any industrial establishment from going on strike during the pendency of the appeal before the appellate tribunal. The Supreme Court rejected the contention observing page 74 of the Report):
whether the appeal is valid or competent is a question, inter alia for the Appellate Court before whom the appeal is filed to determine, and its determination is possible only after the appeal is heard, but there is nothing to prevent a party from filling an appeal which may ultimately be found to be incompetent, e.g., when it is held to be barred by limitation or it does not lie before that court or is concluded by a finding of fact under Section 100 of the Code of Civil Procedure. From the mere fact that such an appeal is held to be not maintainable on any ground whatsoever, it does not follow that there was no appeal pending before the Court.
9. A Division Bench of the Andhra Pradesh High Court followed the above cited cases in Musala Amuajee Rao v. Boggarapu Papaiah : AIR1975AP73 in the context of appeals under Order XLI, C.P.C. it observed (At page 77):
The term appeal wherever used in order clearly appears to be of wide import so as to take in all types of appeals. Where the memorandum of appeal has been presented as indicated in Sub-rules (1) and (2) of Rule 1 of Order XLI and within the period of limitation prescribed therefore, it must be held that there is a valid and competent appeal. However, where the presentation of memorandum of appeal is defective on some ground or other and is not is consonance with the provisions of Sub-rules (1) and (2) of Rule 1 of Order XLI or is presented beyond the period of limitation, it may be called irregular, incompetent, unmaintainable appeal. Nonetheless, it is an appeal in eye of law for all practical purposes and it is not non-est.
10. After noticing the aforementioned cases and other including the one reported in 1966 S.C. 1332, to which purpose to refer at length later in this judgment, a Full Bench of Kerala High Court in Thambi v. Mathew AIR 1980 Kerala 48 has held that an order dismissing the appeal as time-barred is appealable as it amounts to confirming the decree of the lower court.
11. As far as this Court is concerned, the earliest case on the point, Farzand v. Abdul Hamid AIR 1920 Pat. 818 went to the extent of holding that dismissal of appeal as time-barred comes under the purview of Rule 11 and not Rule 3(of Order XLI) and, therefore, appealable. In Suraj Pal Pandey v. Uttim Pandey AIR 1922 Patna 281, rejection of memorandum of appeal for failure to pay deficit court-fee was held to be 'decree' under Section 2(2). To the same effect is the case of Sarjug Pd. Sahu v. Surendrapat Tiwary AIR 1939 Patna 137, where the provisions of Order VII, Rule 11 were made applicable to rejection of the memorandum of appeal on the ground of deficiency of court-fee. In Ramdhari v. Khedu Ahir AIR 1930 Patna 461, it was held that as a universal proposition an order rejecting a memorandum of appeal is not appealable. But where it finally disposes of the dispute between the parties it would be appealable. In Gajadhar Bhagat v. Motichand Bhagat AIR 1941 Patna, 108, it was held, 'It is well settled that rejection of memorandum of appeal as being out of time does amount to a decree and is appealable.'
12. Similar view has been expressed by Lahore High Court in Mt. Barkat Bibi v. Nazir AIR 1942 Lahore 64 and Rajasthan High Court in Boards and Boards Pvt. Ltd v. Bimalaya Paper (Machinery) Pvt. Ltd. .
13. There is no decision of the Supreme Court directly on the point one way or the other. In : [1966]3SCR300 (Sheodan Singh v. Daryao Kunwar) a constitution bench of the Court has, however, held that where an appeal is dismissed on the ground of limitation as being time-barred the result of the decision of the appellate court is to confirm the decision of the trial court given on merits. The facts of the case were that the appellant's father had brought suit No. 37 of 1950 against the respondent Smt. Daryao Kunwar for declaration that he was the owner of the property in the suit and for possession in the alternative. He filed another Suit No. 42 of 1950 against the respondent claiming the price of the crops which stood on certain land on the allegation that the respondent had cut away and misappropriated the crops without any right, title or interest therein. The respondent contested both the suits. Her main defence was that there had been complete partition in the family and in course of time she had inherited the property of one of the co-sharers as his widow. She too instituted two suits of her own, Suit Nos. 77 and 91 of 1950 against the appellant and his father for recovery of the price of her share of the crops grown on the land situated in two different villages said to have been cut away and misappropriated by the appellant and his father. All the four suits were consolidated and tried together. One of the common issues related to the respective rights of the parties in the suit properties. The Court held that the respondent was entitled to the properties claimed by the appellant's father in suit No. 37 of 1950, and dismissed that suit. In view of the said finding on question of title in suit No. 37 of 1950 suit No. 91 of 1950 brought by the respondent was decreed in her favour. The other two suits were also on the basis of the same finding decreed in part in favour of the appellant's father and the respondent respectively to the extent of their shares. The appellant's father preferred appeals. Appeal Nos. 365 and 366 of 1951 against the dismissal of suit Nos. 37 and 42 of 1950, respectively, in the High Court. He also preferred appeals against the decision in the other two suits before the District Judge (Because of valuation of the suit property). Later the appeals pending before the District Judge were transferred to the High Court giving rise to Appeal No. 453 of 1.951 (arising out of suit No. 91/50) and Appeal No. 452 of 1951 (arising out of suit No. 77/50). These two appeals were dismissed by the High Court on 9.10.53 and 7.10.55, respectively, as being time barred and on the ground of failure to pay the cost of translation and printing of the records as required by the rules of the High Court. After dismissal of these appeals, an application was made by the respondent in Appeal Nos. 365 and 366 of 1951 stating that as the main question involved therein, namely, title of respondent to suit property, had become final on account of the dismissal of the appeals arising out of suit Nos. 77 and 91 of 1950, the other two appeals be also dismissed. A Full Bench of the Allahabad High Court upheld the plea of the respondent and dismissed the appeals as barred by principles of res judicata . Before the Supreme Court it was urged that as Appeal Nos. 452 and 453 of 1951 had not been heard and finally decided by the High Court, one of the main ingredients of res judicata that the former suit must be heard and finally decided was not satisfied and, therefore, the appeals could not be said to be barred by res judicata. The plea was rejected in these words:
It is true that the High Court dismissed the appeals arising out of suit Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself not be on the merits, the result of the High Court's decision is to confirm the decision on the issue of the title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial court on the merits, whatever may be the reason for the dismissal of the appeals arising from suits
Nos. 77 and 91. In these circumstances though the order of the High Court itself may not be on the merit, the decision of the High Court dismissing the appeals arising out of suits Nos. 77 and 91 was to uphold the decision on the merits as to issue of title and therefore it must be held that by dismissing the appeals arising out of suits Nos. 77 and 91 the High Court heard and finally decided the matter, for it confirmed the judgment of the Trial Court on the issue of title arising between the parties and the decision of the trial court being on the merits the High Court's decision confirming that decision must also be deemed to be on the merits....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 Trail Court on the merits itself amounts to the appeal being heard and finally decided on the merits whatsoever may be the ground for dismissal of the appeal. (emphasis added).
After making these observations, the law was stated at page 1339 of the report in the following words:
Where the Trial Court has decided two suits having common issues on the merits and there are two appeals there from and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the Trial Court's decision stands confirmed, the decision of the appeal court will be res jndicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the Trial Court given on merits, and if that is so the decision of the appeal court will be res judicata whatever may be the reason for the dismissal.
14. Although the judgment of the Supreme Court in Shodan Singh's case was rendered in the context of plea of res judicata, in my opinion, the same principle should apply in determining to question as to whether the order rejecting an appeal as time-barred amounts to 'decree' or not. Whatever be the nature of the order rejecting the memo of appeal and on whatsoever ground, whether for non-payment of court-fee or failure to comply with a peremptory order of limitation, the effect of the rejection, is confirmation of the decision of the trial court. The decision of the trial court will be deemed to have merged in the order of the appellate court. If that be so, it will be difficult to hold that such orders do not have the force of 'decree', but it will amount to 'decree' only if the decision was on merits. There must have been determination of the rights of the parties with regard to matters in controversy in the suit. If, for example, the suit was dismissed by the trial court for want of jurisdiction, or for default, or on the ground of misjoinder or nonjoinder of parties, or on the ground of misjoinder or nonjoinder of parties, or on account of some technical mistake or bar, or for failure to pay the required court-fee, or for want of cause of action etc, the decision cannot be said to be on merits, as determining the rights of the parties, and in such situations if the decision is confirmed in appeal, the appellate order will not amount to decree.
15. In the above premises I would hold that rejection of memorandum of appeal on the ground of limitation is not appealable in all the cases. Where the appeal is against a decision of the trial court on merits, that is, where the trial court has decided the dispute on merit or, in other words, 'determined the rights of the parties', such rejection would amount to 'decree' and be, therefore, appealable, where, however, the trial court has disposed of the case on a preliminary point or on technical ground without deciding the dispute on merit, 'in limime' rejection of the memorandum will not amount to decree as there was no 'determination of the rights of the parties' by the trial court and the principal laid down in Sheodan Singh's case will not be applicable. In such cases revision will be maintainable. The question is answered accordingly.
16. In the instant case, the trial court had disposed of the suit on a preliminary point. It held that the suit was barred by the provisions of Section 4(b) of the Consolidation Act and accordingly rejected the plaint under Order VII Rule 11 (a). C.P.C. No. doubt, rejection of plaint is also deemed to be decree but it does not determine the rights of the parties or the dispute as such. The case, therefore, falls in the second category, as mentioned above, and the revision-application is, this, maintainable.
17. But my favourable finding on the question of maintainability, I am afraid, is of no avail to the petitioners. As stated at the outset, C.R.No. 605 of 1980 was dismissed on 7.12.1981. The appeal was filed before the District Judge after over 10 months on 11.10.82. The plea set up on behalf of the petitioners was ignorance of the dismissal of the revision-petition and illness of the parties. Both parties led evidence on the point. The court below has considered the evidence and disbelieved the plea. It is not possible to set aside the finding of fact in civil revision. And without setting aside the finding the order cannot be set aside. No jurisdictional error is involved in any way. The court had jurisdiction to either believe or disbelieve the plea regarding ignorance and illness. It has exercised its jurisdiction after considering the evidence on record. Consequently, despite my favourable finding on the question of maintainability of the civil revision, I find it difficult to interfere.
18. I would accordingly dismiss the revision-application as being devoid of merit, but make no order as to cost.