Behera, J.
1. In this revision directed against the order passed by the additional District Judge, Keonjhar, refusing to condone the delay in preferring a Money Appeal presented under Order 41, Rule 1 of the Code of Civil Procedure, 1908 (for short, the 'Code') and rejecting the memorandum of appeal, the question referred by our learned brother R.C. Patnaik, J. for a decision is as to whether an order rejecting a memorandum of appeal or dismissing an appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring an appeal is a decree. If it is, an appeal is competent and if it is not, a revision may lie. The reference has been made because of conflicting decisions of some High Courts including this Court.
2. The operative part of the impugned order passed by the learned Additional District Judge in the Money Appeal reads :
'In view of the discussion as made above, I do not find any sufficient ground to condone the delay in filing the appeal and the appeal is barred by limitation. Hence the appeal memo is rejected.'
No order of dismissal of the appeal has been passed and no decree has been drawn up.
3. In ILR (1962) Cuttack 818 Achyula Khangadamajhi v. Sibram Khangadamajhi G.K. Misra, J. (as he then was) held, dissenting from the view taken by the Patna High Court in AIR 1920 Patna 818 Farzand Ali v. Abdul Hamid and relying on the observations of Gajendragadkar, J. (as he then was) speaking for the Court in AIR 1954 Bom 43. Phaltan Bank v. Baburao, that the decision of the court rejecting a memorandum of appeal or dismissing an appeal on the ground of limitation was not a decree. This was reiterated by the same learned Judge in AIR, 1964 Orissa 86 Rajkishore Sahu v. Pushraj Sagarmal. The same question was considered by a Division Bench of this Court in AIR 1905 Orissa 102 Banwarilal Bhoid v. P. Neelakanthan. The Bench consisting of R.L. Narasimham, C J. and R.K. Das, J. (as he then was) took into consideration a number of reported cases of different High Courts and mainly relying on the case of Rakhal v. Ashutosh (1913) 17 Cal WN 807, overruled the single Judge decision in ILR (1962) Cuttack 818 (supra) and held that the dismissal of an appeal as 'barred' by limitation would amount to a decree wherefrom an appeal would lie. R.C. Patnaik. J., has noticed that the decision reported in 17 Cal WN 807 (supra) has been overruled by a Full Bench of the Calcutta High Court in the case of Mamuda Khateen v. Beniyan Bibi AIR 1976 Cal 415 and referring to the recent amendments made 10 the Code by the Civil Procedure Code (Amendment) Act, 1976 (for short, the 'Amendment Act') and in particular, the addition of Rule 3-A to Order 41, has recorded his view thus :
'In my humble opinion, rejection of an application for condonation of delay may have shut the doors of the appellate court; but the refusal of admittance does not amount to conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. There is no scope for determination of the rights of the parties until condonation of delay and the appeal is admitted for registration. Section 5 of the Limitation Act, therefore, categorically says that no appeal shall be admitted until satisfactory cause is shown for the delay. In the scheme of Order 41, the stage is not reached at the juncture of Rule 3A for the conclusive determination of the rights of the parties. The rights mean substantive rights with regard to all or any of the matters in controversy in the suit. May be the effect of the rejection of the application for condonation of delay would be that the decision of the court below is not liable to be interfered with in appeal but that is a different matter. If after rejection of the application for condonation of delay, the court passes an order dismissing the appeal and draws up a decree in consonance therewith, these are all incidental matters and in my opinion, not strictly in consonance with the scheme of the Code. There is no scope for a judgment on merits and a fortiori for a decree. The Division Bench of this Court laid stress on the form in which the conclusion was expressed. If the decision does not amount to a decree, the fact that a decree was drawn up would not render the decision a decree. In my view, the reasonings given by the authorities which have taken the view that rejection of a memorandum of appeal does not amount to a decree appear to be cogent and convincing.
Misra, J. (as he then was), in my opinion, correctly treated such a decision as not conclusively determining the rights of the parties and as not amounting to a decree by reason of the deeming clause in the second part of the definition of decree.'
4. Mr. R.K. Mohanty for the petitioner and Mr. B.L.N. Swamy for the opposite parties have taken us through the relevant case cited in the order of reference besides some other reported cases which will be considered by us. While the learned counsel for the petitioner has supported the order of reference, it has been urged by. Mr. Swamy that the division bench of this court has recorded the correct view.
5. In support of his reference, the learned judge has mainly relied on the decision of this court in ILR (1962) Cuttack 818 (supra), the Full Bench decision of the Calcutta High Court in AIR 1976 Cal 415 (supra) overruling its previous decision in (1913) 17 Cal WN 807 (supra) and a division bench decision of the Bombay High Court in AIR 1954 Bom 43 (supra) besides, reference has been made to the cases reported in AIR 1917 PC 179 Krishnasami Panikondar v. Ramasami Chettiar AIR 1918 PC 135 Sunderbai v. Collector of Belgaum AIR 1929 All 75 Brijbhukhan v. Tota Ram AIR 1932 Cal 482 Jnanadasundari Shaha v. Madhabchandra Mala, AIR 1936 Cal 804 Sim. Charusila Dassi v. Abhilas Bauri, AIR 1942 Mad 604 Avasarala Kamaraju Pantulu v. Balla Saramma AIR 1964 All 190 Hiralal v. Jhunnilal and AIR 1975 Andh Pra 73 Musala Annaji Rao v. Beggarapu Papaish Setty.
6. In ILR (1962) Cuttack 818 (supra), after taking into consideration the relevant provisions in the Code and relying on the observations made by the Bombay: High Court in AIR 1954 Bom 43 (supra), the learned Judge held :
'... the rejection of the memorandum of appeal or the dismissal of the appeal under the provisions of Order 41, Rule 3, or Order 7, Rule 11, read with Section 107, Sub-section (2), is not a dismissal of the appeal under Order 41, Rule 11, Civil Procedure Code and is not a determination of the rights of the parties with regard to all or any of the matters in controversy, in fact a court expresses no opinion on those matters.'
Dealing with the question as to whether the dismissal of a memorandum of appeal amounts to a decree, it has been held therein that Section 107(2) of the Code confines itself to the powers and duties of the appellate court and cannot enlarge the statutory definition of 'decree' even in the course of the exercise of those powers and duties and no distinction in principle can be made between the rejection of a memorandum of appeal on the ground of its being insufficiently stamped and its being barred by limitation, the same learned judge has held in AIR 1964 Orissa 86 (supra) that the rejection of a memorandum of appeal under Order 41, Rule 3 or Order 7, Rule 11 read with Section 107(2) of the Code is not a dismissal of the appeal under Order 41, Rule 11 and is not a determination of the rights of the parties with regard to all or any of the matters in controversy, then came the decision of the division bench of this court taking a contrary view which has necessitated this reference as our learned brother R.C. Patnaik, J. does not subscribe to that view.
7. Decree has been defined in Section 2(2) of the Code and it reads :
''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 disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.'
Before the amendment Act an order passed under Section 47 of the Code amounted to a decree. That provision has been omitted while amending Section 2(2) of the Code.
8. In AIR 1954 Bombay 43 (supra), it was held:
'Section 2, Sub-section (2), defines a decree and in doing so it provides that the rejection of a plaint and the determination of any question within Section 47 or Section 144 shall be deemed to be a decree; it further provides that it shall not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default. It seems to us difficult to accept Mr. Madbhavi's contention, because we do not think we can add to this definition other orders of adjudication on the ground that they are similar to the orders which are included in the definition itself.
If the Legislature had intended that an order rejecting a memorandum of appeal should be included in the decree, it would have been so easy for the legislature to make appropriate additions in the definition of the decree itself. It seems to us that it would not be open to the court to add to this definition any other kinds of adjudications however similar they may appear to be, to the adjudications which are expressly included in the definition....
xx xx xx
It would thus be noticed that the authority of the Privy Council is in support of the view that if an order has been made by the court of appeal rejecting the appeal on the ground that proper court-fees have not been paid, the appeal virtually has not come before the Court of appeal for disposal on the merits, but it has faded out for the reason that the preliminary steps to present the appeal before the appellate Court properly and effectively were not taken by the appellant.'
9. The main plank of the decision taken by the division bench of this court was the decision of the Calcutta High Court in (1913) 17 Cal WN 807 (supra) which was overruled by a full bench in AIR 1976 Cal 415 (supra). Referring to the case reported in AIR 1954 Bom 43 (supra), the division bench of this court observed :
'.....that decision cannot be taken as authority for the wider proposition that the dismissal as time-barred of the memorandum of appeal, would also not be a decree by parity of reasoning. In my opinion, it would be stretching the principle laid down by their Lordships in the aforesaid Bombay case too far to take such an extreme view. The consideration of the applicability of the deeming provision of Section 2(2) C.P.C. becomes somewhat academic in view of my holding that the first part of the definition clause would, in terms, apply.
xx xxx xxx
Moreover, the learned single Judge of this court has not considered the main question as to whether the impugned order would come within the scope of the 1st part of the definition clause itself in which case any discussion about the correctness of the Bombay decision in AIR 1954 Bom 43 would have become somewhat academic'
10. There has been an Orissa amendment to Order 41, Rule 11, Sub-rule (1) which came into force from December 29, 1961. The proviso which was added would read :
'Provided that when the Appellate Court, other than the High Court, dismisses an appeal under this sub-rule, a judgment shall be written and a formal decree drawn up.'
The Division Bench of this Court did not take note of this amendment. With some verbal differences, the amendment which came into effect from December, 1961 in this State has now been incorporated in Rule 11(4) of Order 41 of the Code by the Amendment Act. This new sub-Rule reads:
'When 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.'
No decree can he passed in a case where a memorandum of appeal has been rejected on the ground of non-payment of the required court-fee or by being barred by the law of limitation having been preferred beyond time. The Division Bench took into consideration the fact that while rejecting the memorandum of appeal and dismissing it, it had been observed by the first Appellate Court that the judgment and decree of the lower court had been confirmed. If such an order cannot legally be passed, it cannot be sustained in law. What the court is concerned with is not the form of the order, but as to whether the order can be so passed legally.
Order 41, Rule 3A(2) of the Code has come into force after the Amendment Act and there was no such specific provision then, but a parallel argument had been advanced before the Division Bench which was left undecided on the ground that in view of the other reasons already recorded by the Bench, this question would be of academic interest.
11. Interlocutory or incidental orders on matters of procedure which do not decide the substantive rights of the parties inter se in respect of the subject-matter of the suit cannot be construed to be decrees. While the expression 'decree' in Section 2(2) of the Code includes the rejection of a plaint under Order 7, Rule 11 of the Code, it does not, in terms, include the rejection of a memorandum of appeal. The words 'shall be deemed to include the rejection of a plaint' would clearly show that but for the use of these words, the order of rejection of a plaint would not amount to a decree and there is no corresponding provision applicable to the rejection of a memorandum of appeal. Section 107(2) of the Code deals with the powers and jurisdiction of an Appellate Court. It would not enable a memorandum of appeal to be regarded as a plaint and consequently, the rejection of a memorandum of appeal is not a decree. In order, therefore, that an order of rejection of a memorandum of appeal is to be construed as a decree, it must satisfy the other conditions of Section 2(2) of the Code. There must have been conclusive determination of the rights of the parties with reference, to the subject-matter in controversy.
12. In AIR 1976 SC 1503 Diwan Brothers v. Central Bank of India, Bombay the Supreme Court has laid down :
'Thus on a consideration of the authorities mentioned above the propositions may be summarised as follows: Firstly, that under the definition of a 'decree' contained in Section 2(2) of the Code of Civil Procedure. 1908, three essential conditions are necessary :
(i) that the adjudication must be given in a suit,
(ii) that the suit must start with a plaint and culminate in a decree; and
(iii) that the adjudication must be formal and final and must be given by a civil or revenue court,'
13. On being asked at the hearing as to whether the impugned order of rejection of the memorandum of appeal in the instant case can be said to be a formal and final adjudication conclusively determining the substantive rights of the parties with regard to all or any of the matters in controversy keeping in view the definition of 'decree' and the principles laid down by the Supreme Court in the case just referred to, the learned counsel for the opposite parties has submitted that it is not but his contention is that the expression 'decree' shall be deemed to include the rejection of a memorandum of appeal and, therefore, an appeal would be competent. For the reasons already recorded and to follow, this contention cannot be sustained. The question for consideration is not what would be the ultimate result because of the rejection of a memorandum of appeal, but whether such an order of rejection can be construed to be a decree and consequently would be appealable.
14. Every finding would not amount to a decree although it may conclusively determine the rights of the parties with regard to some of the matters in controversy. 'Decree' shall include (a) the rejection of a plaint under Order 7, Rule 11 and (b) the determination of any question under Section 144, but shall exclude (i) any adjudication from which, an appeal lies as an appeal from an order and (ii) any order of dismissal for default. The decree may be either be preliminary or final or partly preliminary and partly final. Under the definition of 'decree', three must be a formal and final adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy. If an order falls short of this and cannot be deemed to be a decree in accordance with its definition in Section 2(2), it would not amount to a decree against which an appeal would lie. If in substance, the order passed in a decree or is to be construed to be one, the mere fact that the court passing the same styles it as an order is of no consequence and will not make it non-appealable. Conversely, if in substance, the order passed cannot be held to be a decree, the mere fact that the court passing the same styles it as such would not make it a decree. The essential distinction lies in the nature of the decision and not in the manner of its expression. Whether a decision is one or the other depends on the substance and the provisions of the Code must be construed in their plain and obvious sense.
15. A Full Bench of the Calcutta High Court has lucidly and in no uncertain terms ruled in AIR 1976 Cal 415 (supra) that 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 preferring an appeal is not a decree, but an order against which a revision may lie and no appeal lies under Order 43, Rule 1 of the Code. The Full Bench held :
'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 the 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.'
Our learned brother R.C. Patnaik, J. has referred to this case and agrees with the view recorded therein.
16. Mr. Swamy for the opposite parties has invited our attention to the cases reported in AIR 1954 SC 73 Raja Kulkarni v. State of Bombay and AIR 1975 Andh Pra 73 (supra) and has submitted that an appeal can be said to be pending the moment it is presented. Inviting our attention to the provisions made in the General Rules and Circular Orders for the guidance of the subordinate courts in this State and the Rules of this High Court, Mr. Swamy has contended that the moment an appeal is presented, it is being registered and numbered as an appeal and rejection of memorandum of an appeal on any ground must be construed to be a decree. None of two reported cases is an authority for the proposition sought to be made out on behalf of the opposite parties. The question involved in the instant case was not in issue in any of those cases.
17. The decision of the Gauhati High Court reported in AIR 1978 Gauhati 17 Thoudam Ningol Ningthoujam Ongbi Muktarli Devi v. State of Manipur to the effect that although the rejection of a plaint is not a formal decree, it is a decree within the deeming inclusive definition given in Section 2(2) of the Code and that, therefore, an appeal lies and a revision does not, to which our attention has been invited by Mr. Swamy, would not further his contention as undoubtedly, rejection of a plaint would amount to a decree as given in the definition itself.
18. Mr. Swamy has contended that the Full Bench of the Calcutta High Court has not taken due notice of the decision of Division Bench of the same High Court in AIR 1921 Cal 415 Promotho Nath Roy v. W. A. Lee where it has been decided that an order dismissing an appeal as barred by limitation prescribed therefor after refusing an application under Section 5 of the Limitation Act to admit an appeal after the prescribed time is an order passed in appeal under Section 109 of the Code and this view has been affirmed by the Supreme Court in AIR 1956 SC 367 Me la Ram and Sons v. Commr. of Income-tax, Punjab. In the earlier Calcutta case, however, the decision has been taken while interpreting Section 109 of the Code and the question raised in the instant case did not directly arise for consideration. The Supreme Court has held in the aforesaid case (at p. 371) :
'It is well established that the rule of limitation pertains to the domain of adjectival law, and that they operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with Section 30(1) of the Income-tax Act, 1922 must, therefore, be an appeal in the eye of law, though having been presented beyond the period mentioned in Section 30(2) it is liable to be dismissed in limine'.'
The Supreme Court has referred to and accepted the view in AIR 1921 Cal 415 (supra) and the principle laid down by the Supreme Court would not support the cause of the opposite parties in the case before us.
19. Our learned brother, while making the reference, has rightly observed :
'Section 5 of the Limitation Act says that no appeal may be admitted after the prescribed period unless the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within such period. So, the question of satisfaction of the Court would arise before the stage of admission. If the appellant fails to satisfy the delay, his prayer for condonation is rejected, the consequence whereof is that either the memorandum of appeal is rejected or the appeal is dismissed. It is immaterial in what form the order is passed. But there can be little doubt that the exercise is made or should be made before the Court is called upon to apply its mind to the merits. Merits of the case are not relevant at the stage of consideration of the question of limitation. At that stage the Court does not have to or should not adjudicate on the rights of the parties. So, it has been said that on the appellant satisfying the court that he had sufficient cause for not preferring the appeal within the prescribed time, the memorandum is admitted to the Registry or registered. So long as the delay has not been condoned, the doors are closed on the memorandum. On delay being explained satisfactorily, the memorandum gets an entry for consideration and adjudication on merits.'
20. For the aforesaid reasons, it would clearly appear that the view taken by the learned single Judge of this Court in ILR (1962) 'Cuttack 818 (supra) which was repeated by the same learned Judge in AIR 1964 Orissa 86 (supra), laid down the correct law. An order of the nature passed in the instant case cannot be construed to be a decree as held in AIR 1965 Orissa 102 (supra).
21. The amendments effected to Order41 by the Amendment Act make theposition clear and it must be held that anorder rejecting a memorandum of appealbefore its admission would not amount to a'decree' within the meaning of Section 2(2)of the Code.
22. Rule 3-A of Order 41 has been incorporated in the Code by the Amendment Act and it reads :
'Application for condonation of delay.--(1) When an appeal is presented after the expiry of the period of limitation specified therefor, 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.
(2) If the Court sees no reason to reject the application without the issue, of a 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 under Rule 11 or Rule 13, as the case may be.
(3) Where an application has been made under Sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under Rule 11, decide to hear the appeal'
The Objects and Reasons for effecting the amendment would appear from the following:
'Clause 90--Sub-clause (iii).--Where an appeal is filed after the expiry of the period of limitation, it is the practice to admit the appeal subject to the provisions as to limitation being raised at the time of hearing. This practice has been disapproved by the Privy Council which has stressed the expediency of adopting a procedure for securing the final determination of the question as to limitation even at the stage of admission of the appeal. Now Rule 3A is being inserted to give effect to the said recommendation. --S. O. R. (Gaz. of Ind., 8-4-74, Pt. II, Section 2, Ext, P. 336).
Clause 87 (Original Clause 90) (ii).--The Committee is of the view that the Court should not be empowered to grant ad interim stay of execution of the decree unless the Court has, after hearing under Rule 11 of Order XLI, decided to hear the appeal. Sub-rule (3) in the proposed Rule 3A of Order XLI has been inserted accordingly.--J. C. R. (Gaz. of India, 1-4-76, Pt. II, Section 2, Ext, p. 804/21).'
23. As provided in Rule 9 of Order 41, where a memorandum of appeal is admitted, the Appellate Court or the proper officer of that Court shall endorse thereon the date of presentation and shall register the appeal in a book to be kept for the purpose. Such book shall be called the Register of Appeals. If, as submitted by Mr. Swamy, this is hot the procedure now being followed by this Court and the subordinate courts, the Rules framed for this Court and the Rules framed by this Court for the observance of the subordinate courts with regard to the presentation of a memorandum of appeal accompanied by application for time to pay the deficit court-fee or an application under Section 5 of the Limitation Act to condone the delay may require suitable amendments. This, however, is a matter relating the practice and procedure. Until the stage of Rule 9 comes, the appeal is not to be registered as provided therein and this registration is to take place after the appeal is admitted.
24. As now provided in Sub-rule (4) of Rule 11 of Order 41 of the Code, 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 Sub-rule (4), it must be kept in mind, comes at a stage after the appeal is registered and heard on the question of admission and it has specifically been provided that if the High Court is not the court of appeal, the court dismissing an appeal under Sub-rule (1) shall deliver a judgment however brief it may be, containing the grounds for dismissing the appeal and a decree shall be drawn up in accordance with the judgment.
25. As provided in Sub-rule (2) of Rule 3-A Order 41 of the Code, as amended, notice of the application for condoning delay under Section 5 of the Limitation Act shall be issued to the respondent and the matter shall be finally decided by the court before it proceeds to deal with the matter under Rule 11 or Rule 13, as the case may be. Rule 9 provides for the registration of an appeal after admission and Rule 11 provides for admission of an appeal. Until an appeal is admitted, there can be no adjudication of the rights of the parties. As provided in Sub-rule (2) of Rule 3-A of Order 41 of the Code, the question relating to condonation of delay in preferring an appeal has to be decided before the court proceeds under Rule 11. Sub-rule (3) of Rule 3-A makes the position further clear by providing that when an application has been made under Sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the court does not after hearing under Rule 11, decide to hear the appeal In other words, what is evidently meant by the Legislature is that until delay in preferring the appeal is condoned and so long as the court does not decide to hear the appeal after hearing under Rule 11, there is no appeal in the eyes of law. The appeal remains at the threshold, but does not get entrance. It follows that an order rejecting a memorandum of appeal as being barred by limitation before its admission and before the court proceeds under Rule 11 of Order 41 cannot be said to be an order finally adjudicating the disputes between the parties so as to attract the definition of 'decree' within the meaning of Section 2(2) of the Code.
26. In AIR 1983 Patna 189 State of Bihar v. Ray Chandi Nath Sahay, it has been held that Rule 3-A of the Code is not mandatory. Whether this provision is mandatory and the application for condonation of delay shall accompany the memorandum of appeal as held in AIR 1984 Kant 40 Madhukar Daso Deshpande v. Anant Nilkarttha Deshpande relying on the decision of Kerala High Court (AIR 1980 Ker 173) as decided in AIR 1983 Patna 189 (supra) and as to whether interim stay can be granted after-presentation of an appeal under Order 41, Rule 3-A of the Code as held in AIR 1984 Cal 20 Sri Rani Satiji Mandir v. Shyam Sundar Jhunjhunwala are not the questions for consideration before us. Mr. Swamy has not placed before us any decision after the Amendment Act came into force to the effect that the rejection of a memorandum of appeal on the question of limitation would amount to a decree within the meaning of Section 2(2) of the Code.
27. The learned counsel for the petitioner has invited our attention to the principle laid down in AIR 1983 SC 676 Madan Naik v. Mst. Harisubala Devi to the effect that abatement of an appeal for non-substitution does not imply an adjudication on merits and as such, when the appeal abates, there is no decree and the second appeal against such an order is incompetent.
28. Out views that rejection of a memorandum of appeal is not to be equated with rejection of a plaint and that rejection of a memorandum of appeal after refusing to condone delay in preferring it cannot amount to a decree find support from two recent decisions of the Andhra Pradesh and Madhya Pradesh High Courts which have come to our notice.
In (1981) 1 Andh WR (HC) 306 Seshamsetti Venkata Rattamma v. Raya Chinna Narasareddi, the memorandum of appeal had been rejected for non-payment of court-fee and an application in revision had been made in the High Court under Section 115 of the Code. The question arose as to whether the revision was maintainable. Relying on the principles laid down in ILR (1941) Mad 954 : (AIR 1941 Mad 836) (Full Bench) In re Kayambu Pillai, it was laid down :
'A plain reading of the section would show that it is only when a plaint is rejected that such an order would be treated as a decree as provided by Sub-section (2) of Section 2 of Civil Procedure Code, the Legislature is singularly silent with regard to the rejection of an appeal and therefore by no stretch of imagination, the rule providing rejection of plaint in Sub-section (2) of Section 2, would be applicable to the rejection of an appeal.
In AIR 1981 Madh Pra 13 Chhitu v. Mathuralal the learned Judge considered the scope and effect of Order 41, Rule 3-A (2) of the Code and observed and held : '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 (court's) 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.'
It was accordingly held that as the delay in preferring the appeal had not been condoned, there was no appeal in the eye of law before the lower appellate Court which it could proceed to decide.
29. As has been held in AIR 1984 All 14 Brahma Swaroop v. Shamsher Bahadur, different procedures have been provided in the Code for hearing of suits and appeals. Order 17 applies to the original trial of the suit and not to the hearing of an appeal from the trial court's decree in a suit. The procedure for hearing of an appeal is prescribed by Order 41.
30. Because Section 107(2) of the Code provides that subject to the provisions made in Sub-section (1) of Section 107, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on the courts of original jurisdiction in respect of suits instituted therein and Order 7, Rule 2 provides for rejection of plaint by an original court which, as provided in Section 2(2) of the Code, would be construed to be a decree, it would not follow, in spite of the specific provisions made in Order 41 of the Code with regard to the procedure to be adopted in respect of an appeal accompanied by an application for condonation of delay under Section 5 of the Limitation Act and after disposal of the application, for its registration and hearing on the question of admission, that the rejection of a memorandum of appeal would also come under the purview of Order 7, Rule 11 of the Code. Powers and jurisdiction conferred on the appellate court under Section 107(2) are not to be equated with the procedures specifically laid down separately in respect of admission of an appeal under Order 41 of the Code and its determination.
31. For the reasons recorded by R.C. Patnaik, J. in the order of reference and in view of what has been stated above, we hold that an order rejecting a memorandum of appeal or dismissing an appeal following the rejection of an application under Section 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. The Civil Revision may now be placed before our learned brother R.C. Patnaik, J. for a decision.
Pathak, C.J.
32. I agree.
J.K. Mohanty, J.
33. I agree with the conclusion arrived at by my learned brother B.K. Behera, J. that an order rejecting a memorandum of appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of delay' in preferring the appeal is not appealable but revisable. The position has become amply clear in view of the provisions of Rule 3-A of Order 41 C. P. C. as introduced by the Code of Civil Procedure (Amendment) Act, 1976.
34. Sub-rule (4) of Rule 11 of Order 41 C. P. C. has been incorporated by the Code of Civil Procedure (Amendment) Act, 1976. Prior to that there was an Orissa Amendment to Order 41, Rule 11 Sub-rule (1) which was in force from 29-12-1961 which is almost identical to Order 41 Rule 11(4). The Orissa Amendment is as follows : --
'Provided that when the Appellate Court, other than the High Court, dismisses an appeal under this sub-Rule, a judgment shall be written and a formal decree drawn up'.
This Orissa Amendment was perhaps not brought to the notice of the Court while deciding the case reported in ILR (1962) Cuttack 818 (Achyuta Dhangadamajhi v. Sibram Dhangadamajhi). The Division Bench decision of this Court in AIR 1965 Orissa 102 (Banwarilal Bhoid v. R Neelakantham) though has not mentioned about the Orissa Amendment, it appears that it is in conformity with the aforesaid amendment. It is, however, academic to go into the question as to whether rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring appeal is a decree or not in view of Rule 3A of Order 41. The objects and reasons for introducing Rule 3-A of Order 41 have made it amply clear that the question of limitation will be considered before the memorandum of appeal is admitted under Rule 9 of Order 41 of the Code of Civil Procedure.