V.K. Agarwal, J.
1. The learned Single Judge has referred the following question to the Full Bench for decision :- 'Whether a second appeal lies to the High Court if the first appeal is dismissed as barred by limitation after rejection of the application for condonation of delay filed either under Section 5 of the Limitation Act or under Order 41, Rule 3-A of the Civil Procedure Code?'
2. The facts leading to the present reference in brief are : that the appellants/plaintiffs had filed a Civil Suit No. 31 -A/1980 for declaration and possession in the Court of Civil Judge, Class-II, Dhamtari, which was dismissed on 27-1-1982. The appellants thereafter filed an appeal registered as Civil Appeal No. 34-A/83 in the Court of IV Addl. Judge to the Court of District Judge, along with an application under Section 5 of the Limitation Act, for condonation of delay in filing the appeal. The said application and the appeal were dismissed by the first appellate Court on 24-10-1986. Thereafter, the appellants preferred second appeal, which was admitted for hearing on the following substantial question of law :-
'Whether under the facts and circumstances of the instant case, the Court below committed jurisdictional error by not exercising its jurisdiction under Section 5 of the Limitation Act, thereby condoning two days' delay in filing the appeal before it, notwithstanding, good and sufficient cause for condoning the same has been made out?'
At the time of hearing of the second appeal, a preliminary objection was raised before the learned Single Judge by the respondent that the second appeal is not maintainable, in view of the Division Bench judgments reported in 1989 MPLJ 6 = AIR 1989 MP 302, Ajit Singh v. Bhanwarlal and 1993 MPLJ 442 = 1992 JLJ 458, Laxmi Bai v. N.K. Das. It was urged on behalf of the respondents in this regard that since the application under Section 5 of the Limitation Act for condonation of delay was rejected and, therefore, the appeal was dismissed otherwise than on merits, hence, in fact, there was no decree. Consequently, a second appeal against such a dismissal was not competent.
3. The learned Single Judge was of the view that the decision in Ajit Singh's case (supra) did not consider the effect of judgment of the Supreme Court in Melaram & Sons v. Income Tax Commissioner, AIR 1956 SC 367, while in the case of Laxmi Bai (supra), the point was conceded. According to the learned Single Judge, the decision of the Division Bench in Ajit Singh's case (supra) did not consider if dismissal of the appeal as barred by limitation amounts to confirming the judgment and findings recorded by the trial Court, and that if a decision on the application for condonation of delay filed under Section 5 of the Limitation Act was treated to be a decision confirming the findings of the trial Court, then an order under newly incorporated provision of Order 41. Rule 3-A, Civil Procedure Code would also amount to confirming judgment and findings of trial1 Court. Hence, the Division Bench case in Ajit Singh (supra) deserves reconsideration.
4. It is clear that Civil Appeal No. 34-A/83 preferred by the appellants against the judgment and decree passed in civil suit No. 31-A/1980 of the Court of Civil Judge, Class-II, Dhamtari was accompanied by an application under Section 5 of the Limitation Act, as the appeal was barred by time by either two or three days. The said application was for condonation of delay in filing the appeal and consequently the appeal was dismissed by the first appellate Court.
5. It has been contended by the learned counsel for the appellants that the application under Section 5 of the Limitation Act was an integral part of the appeal and, therefore, even if the said application was disallowed and consequently appeal dismissed as barred by limitation, it would amount to final adjudication of the matter between the parties and, therefore, the decree of trial Court would merge into the order passed in appeal. It is also urged that it is immaterial whether the decree was actually drawn up or not? Reference was also made to the provisions of Order 41, Rule 3-A of the Civil Procedure Code, which according to the learned counsel for the appellants were inserted by way of amendment to protect and avoid the possibilities of injustice to respondents.
6. It may be mentioned that by the said provision of Rule 3A of Order 41, Civil Procedure Code, it has been mandated that an application for condonation of delay ought to be decided before proceeding to deal with the appeal under Order 41, Rules 11 and 13, Civil Procedure Code, as the case may be. It has also been urged that it cannot be said that there was no validly constituted appeal or decision thereon, merely because application for condonation of delay was dismissed. The learned counsel for the appellants has argued in this connection that the decisions in Ajit Singh's case and Laxmi Bai's case (supra) have not considered the effect of judgments of the Supreme Court on the point. In this respect, reference has been made by him to the cases in Raja Kulkarni v. State of Bombay, AIR 1954 SC 73, Mela Ram & Sons v. Commissioner of Income Tax, Punjab, AIR 1956 SC 367, Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332, Laxmiratan Engineering Works Ltd. v. Assistant Commissioner, Sales Tax, AIR 1968 SC 488, Gojer Brothers Ltd. v. Shri Ratanlal Singh, AIR 1974 SC 1380 and Rani Choudhary v. Lt. Col. Suraj Jit Choudhary, AIR 1982 SC 1397.
7. Learned counsel for the respondents as against this, has urged in reply that since the application for condonation of delay was disallowed and the appeal was dismissed, there was, in fact, no decree as defined under Section 2(2) of the Civil Procedure Code and, therefore, an appeal was not competent under Section 100, Civil Procedure Code. He has placed reliance on the decisions of this Court in Laxmi Bat's case and Ajit Singh's case (supra).
8. The basic point that, therefore, arises for consideration is as to what is the effect of dismissal of an appeal consequent to dismissal of an application under Section 5 of the Limitation Act and/or an application under Order 41, Rule 3A of the Civil Procedure Code and whether the order dismissing the appeal in the above manner would amount to a decree in which there is merger of a decree of the trial Court and, therefore, an appeal under Section 100, Civil Procedure Code would be competent?
9. The argument of the learned counsel for the respondents is that second appeal filed under Section 100, Civil Procedure Code against an order rejecting the first appeal as barred by limitation is not competent as, in fact, there is no decree by the Court of first appeal, but only an order. In this connection, the Division Bench case reported in Ajit Singh v. Bhanwarlal, 1989 MPLJ 6 = AIR 1989 MP 302 has been relied upon and it was contended that since the appeal was dismissed otherwise than on merits, second appeal does not lie. It was contended that Order 41 of the Civil Procedure Code prescribes the procedure for preferring an appeal and that if Rule 3A(2) of Order 41, Civil Procedure Code mandates that Court of appeal 'shall not proceed to deal with the appeal under Rule 11 or Rule 13' without finally deciding the question of limitation, that would be an express bar and the appellate Court would be deemed not 'authorised' to hear the appeal under Section 96 of the Civil Procedure Code and substantive rights of the parties are not decided therein, as only the question of limitation is decided against the appellants and the appeal is dismissed as time barred.
10. It has thus contended that as per provisions of Order 41, Rule 3A(2), Civil Procedure Code, since an appeal cannot be proceeded with under Rule 11 or Rule 13 of Order 41. Civil Procedure Code without first finally deciding the question of limitation, therefore, second appeal against such an order rejecting an application under Order 41, Rule 3A, Civil Procedure Code and appeal as barred by limitation does not lie. Case of Laxmi Bai (supra) was also relied upon. The judgments of Balkrishan v. Tulsa Bai, AIR 1987 MP 120 and Rambharose Singh v. Hemlata Athle, 1995 (1) MPWN 65 = AIR 1994 MP 198 are also cases on the point.
11. A reference may also be made in this connection to the judgment reported in Chhitu v. Mathuralal, AIR 1981 MP 13, wherein it has been observed thus :
'The governing expression in the sub-rule (2) 'shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be' makes it imperative for the appellate Court first to decide the question of limitation and puts an embargo on its power to proceed further in the appeal. The appeal cannot be heard even on the question of admission much less on merits. In effect there is no appeal before the Court unless the delay is condoned. This conclusion gets buttressed from the expression 'the appeal is proposed to be filed'. The use of this expression even in face of the fact that memorandum of appeal along with the application for condonation of delay is on record, clearly bears out the intention of the legislature that till the delay is not condoned, it cannot be treated in law that there is an appeal before the Court.'
12. In Ainthu Charan Parida v. Sitaram Jayanarayan Firm and Anr., AIR 1984 Orissa 230, the proposition as above has been laid down and it has been held that an order rejecting a memorandum of appeal or dismissing it consequent to the dismissal of an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal would not amount to a decree as defined in Section 2(2) of the Civil Procedure Code. Therefore, an appeal against such an order would not lie.
13. Similar view has been taken in the Full Bench decision reported in AIR 1976 Cal. 415, Mamuda Khatten and Ors. v. Beniyan Bibi, wherein it has been held thus :
'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, 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 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.
Our answer therefore to the question referred to us is that an 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 in revision under Section 115 of the Code may lie but no appeal under Order 43, Rule 1 of the Code can be preferred.
14. Thus, according to the above decisions, second appeal does not lie after an application under Section 5 of the Limitation Act read with or under Order 41, Rule 3A of the Civil Procedure Code has been disallowed and the appeal consequently dismissed.
15. As against this, the learned counsel for the appellants has contended that the decisions of the M. P. High Court have not taken into account the judgments and law laid down by the Supreme Court. It has been urged that the dismissal of an appeal as barred by limitation is an order passed in appeal and that the application for condonation of delay, in fact, is an integral part of an appeal. Since such an order would be an order passed in appeal itself, in which the decree of the trial Court gets merged and, therefore, a second appeal is competent.
16. In Melaram & Sons v. Income Tax Commissioner, AIR 1956 SC 367, the Supreme Court while interpreting the provisions of Sections 31 and 33 of the Income Tax Act held after considering various decisions :
'On the principles laid down in these decisions, it must be held that an appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal.'
In the above case, the observations in Nagendra Nath v. Suresh Chandra, AIR 1932 PC 165 have been quoted regarding the construction of the word 'appeal' as below :-
'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 acceptation of the term, and that it is no less an appeal because it is irregular or incompetent.'
Thus, even if an appeal is presented beyond the period of limitation and may, therefore, be held to be incompetent, still it is an appeal and an order of dismissal of such an appeal as time-barred is one passed in appeal.
17. In AIR 1954 SC 73, Raja Kulkarni v. State of Bombay, it has been laid down that:
'Whether the appeal is valid or competent is a question entirely for the Appellate Court before whom the appeal is filed to determine and this determination is possible only after the appeal is heard, but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent, e.g., when it is held to be barred by limitation or that it does not lie before that Court or is concluded by a finding of fact under Section 100, Civil Procedure Code. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the Court.'
18. In Rani Chaudhary v. Lt. Col. Suraj Jit Chaudhary, AIR 1982 SC 1397, Melaram's case (supra) was followed and it was observed :-
'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 & Sons v. CIT, AIR 1956 SC 367 where Venkatarama Ayyar J., speaking for the Court, after referring to Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 PC 165, Raja Kulkarni v. State of Bombay, AIR 1954 SC 73 and Promotho Nath Roy v. W.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.'
19. Thus, the dismissal of an appeal on the ground of limitation will nevertheless be an order in appeal even though there was no decision on merits and the effect of the order is, in fact, confirming the findings and judgment against which an appeal is preferred.
20. The above question was also considered by the Kerala High Court in the case of Thambi v. Mathew, AIR 1988 Ker. 48. In the above case, various decisions of the Supreme Court were considered and it was held that dismissal of an appeal on the ground of limitation would amount to confirmation of decree of the trial Court on the merits of the case and the decision of the appellate Court would operate as res judicata on the question of title raised in the connected appeal. It has also been held therein after considering the decision of the Supreme Court in Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 that the decision 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.
21. Reference may also be made to AIR 1921 Cal.415, Promotho Nath Roy v. W.A. Lee wherein it is held that an order dismissing an appeal as barred by limitation after rejecting an application under Section 5 of the Limitation Act to condone the delay in presentation was held to be one passed in appeal.
22. It may be pointed out that Order 41, Rule 3 A of the Civil Procedure Code only mandates that when an appeal is presented after the expiry of the period of limitation specified, 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 had sufficient cause for not preferring the appeal within such period. Where an application has been made under sub-rule (2) of Order 41, Rule 3A of the Civil Procedure Code, if the Court sees no reason to reject the application without notice thereof, notice shall be issued to the respondent, and the matter shall be finally decided by the Court, before it proceeds to deal with the appeal under Rule 11 or Rule 13, Civil Procedure Code.
23. In view of the above provisions of sub-rules (1) and (2) of Rule 3A, it is clear that the said provisions have been incorporated only to safeguard the interest of the respondents and provide for application for condonation of delay to be decided before proceeding to decide the appeal itself under Rule 11 or Rule 13, Order 41, Civil Procedure Code so that the respondents may not be required to contest the appeal, in case the finding regarding application for condonation of delay is against the appellants and the appeal is consequently to be dismissed on that ground. However, these provisions do not contemplate dismissal of appeal itself which has to be done under Rule 11 or Rule 13 of Order 41, Civil Procedure Code, after the decision on the application filed under Rule 3A of Order 41, Civil Procedure Code. In other words, only after the application for condonation of delay filed under Order 41, Rule 3A of the Civil Procedure Code or Section 5 of the Limitation Act is decided, the appeal can be disposed of and decided in terms of Order 41, Rule 11 or Rule 13, Civil Procedure Code. Sub-clause (4) of Rule 11, Order 41, Civil Procedure Code reads as below :-
'(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.'
It is clear under the above provision that it is incumbent on the appellate Court, if it is not the High Court, to draw up a decree when the appeal is dismissed under sub-rule (1) of Rule 11 of Order 41, Civil Procedure Code. Clearly, therefore, after the matter is decided under Order 41, Rule 3A, Civil Procedure Code, the appellate Court shall proceed to decide the matter under Rule 11 or Rule 13, Civil Procedure Code and if under Rule 11, the appeal is dismissed, a decree has to be drawn up in accordance with sub-rule (4).
24. In view of the above discussion, it is clear that the decree of the trial Court would merge in the appellate decree, even when the appeal is dismissed on a preliminary ground or as time-barred.
25. The above aspect of the matter does not appear to have been considered by the Division Bench in Ajit Singh's case (supra) as also in the cases of Laxmi Bai, Balktishan, Rambharose Singh and Chhitu (supra). In view of the pronouncement of the Supreme Court, it is clear that appeal, even if dismissed on the point of limitation, would amount to a decree in which the trial Court's decree has merged and, therefore, a second appeal is not barred. We respectfully are unable to concur with the view taken in the cases of Ajit Singh, Laxmi Bai, Balkrishan, Rambharose Singh and Chhitu (supra) as the said decisions do not appear to have laid down the correct law.
26. The reference is, therefore, answered as below :-
'That a Second Appeal lies to the High Court even if the First Appeal is dismissed as barred by limitation after rejection of the application for condonation of delay filed either under Section 5 of the Limitation Act or under Order 41, Rule 3A of the Code of Civil Procedure.'
27. Let the records of the case be placed before the appropriate Bench, for deciding the appeal in accordance with law.