IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12501 of 2011 Surendra Kumar Agrawal Versus Bihar State Construction Corpn ---------------------------------- O R D E R 12. 22.11.2011 1. Heard the learned counsel Mr. Kundan Bahadur Singh on behalf of the petitioner. 2. The plaintiff appellant has filed this application under Article 227 of the Constitution of India against the order dated 13.1.2007 passed by the learned District Judge, Patna in Money Appeal No. 13 of 2006 whereby the appeal preferred by this petitioner against the trial court judgment and decree dated 15.1.2003 passed by Subordinate Judge-3, Patna in Money Suit No. 25 of 1998 has been dismissed as time barred in consequence of rejection of limitation application. 3. The learned counsel for the petitioner was heard on the maintainability of this application under Article 227 of the Constitution of India. The learned counsel for the petitioner submitted that the order dated 13.1.2007 dismissing the appeal in limine by the lower appellate court after rejecting the limitation application is not a decree within the meaning of Section 2 sub-section 2 C.P.C. In support of his contention the learned counsel relied upon a decision of the Apex Court in the case of Chandi Prasad and 2 others v. Jagdish Prasad and others 2005 (1) PLJR 346 SC. According to the learned counsel the judgment and decree passed by the trial court will never merge in the order passed by the appellate court dismissing the appeal on the ground of limitation and, therefore, it will not be a decree within the said expression as defined in Section 2 sub-section 2 C.P.C. as such is not appealable. However, the learned counsel submitted that if it is held that the impugned order is a decree then the petitioner may be permitted to convert this writ application to second appeal under Section 100 of the Code of Civil Procedure. 4. From perusal of the decision relied upon by the learned counsel it appears that the question before the Apex court in Chandi Prasad Case (Supra) was what would be the date from which a decree became enforceable for execution thereof within the meaning of Article 136 of the Limitation Act, 1963. The Apex Court while deciding this question considered various decisions of the Apex Court on the said question and lastly held that “upon analysising when a decree or order becomes enforceable vis. a vis. the definition of decree in Section 2(2) C.P.C. this court observed that when a dismissal of an appeal takes place on the ground of it is being time barred, no decree is passed.” It appears that the Apex Court considered the question 3 whether the doctrine of merger shall apply or not, if appeal is barred by limitation and dismissed as such. Further it appears that before the Apex Court the question whether dismissal of appeal as barred by limitation after rejecting the limitation application is a decree or not was not directly involved nor it was answered directly. It further appears that the decision of four Judges Bench in the case of M/s Mela Ram and Sons v. The Commissioner of Income Tax, Punjab AIR 1956 SC 367 and AIR 1966 SC 1332 Sheodan Singh v. Daryao Kunwar the constitution bench decision of the Apex court which specifically deals with this question have not been considered. 5. The amendment introducing Rule 3-A or Order 41 was on the basis of 14th and 27th report of the Law Commission. In its 27th report the Law Commission recommended “in the 14th report attention was drawn to the practice which was previously followed by admitting an appeal subject to objection as to limitations being raised at the time of hearing, where the memorandum of appeal was accompanied by a petition seeking the condonation of delay under Section 5 of Limitation Act. This practice has been disapproved by the Prevy Council, which has stressed the expediency of admitting a procedure securing at the stage of admission the final determination (after 4 due notice) on question of limitation affecting the competence of the appeal” The provision was accordingly introduced by the Amendment Act, 1976 with a view to secure at the stage of admission of the appeal a final determination on the question of limitation. Rule 3-A of Order 41 C.P.C. reads as follows : “R. 3A. 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.” It is clear from the above Rules that the appeal is properly presented if it is filed with a limitation application supported by an affidavit setting forth the ground of condonation of delay as provided under sub Rule (1). According to sub Rule (2) the 5 application be decided by the Court before it proceeds to deal with the appeal under Rule 11 of Order 41. Therefore, a dismissal of the application for condonation of delay results in the dismissal of the appeal which can only be made under Rule 11 of Order 41. Section 3 of the Limitation Act also requires an appeal filed after the prescribed period of time to be dismissed subject to provision contained in Section 4 to 24. Sub Rule (3) of Rule 3-A does not render an appeal properly presented under sub Rule, a proposed appeal. Sub-rule (3) inspite of its language would only mean that no stay of the execution of the decree appealed against the same shall be granted before the Court after hearing the appeal under Rule 11 decides to admit the same. An appeal presented out of time is nevertheless an appeal in the eye of law for a practical purposes. The question whether an appeal which has been properly presented with a limitation petition can be admitted or not is a question of subsequent stage and to reach that stage the application has to be disposed of finally. Now let us consider the fact that in a case where an appeal has been admitted and then dismissed on a preliminary objection raised at the hearing disclosing the fact that the appeal was filed out of time, is it possible to say that the order dismissing the appeal on the ground of limitation, is not a 6 decree?. Sub Rule 4 of Rule 11 of Order 41 C.P.C. requires an appellate court not being the High Court dismissing the appeal under sub rule to deliver a judgment and a decree is to be drawn up in accordance with the judgment. It is thus, clear that the dismissal of an appeal under Order 41 Rule 11 postulate the drawing of a decree which can be subject to a further appeal under Order 41 Rule 1 read with Order 42 C.P.C. In the Code of Civil Procedure there is no separate provision which allows the appellate court to reject a memorandum of appeal on the ground of its being barred by limitation. The Full Bench decision of the Kerala High Court in the case of Thambi v. Mathew AIR 1988 Kerla 48 considering this direct question held that the order of the District Judge dismissing the appeal on the ground of limitation is a decree within the meaning of Section 2 sub-section 2 of the Code of Civil Procedure. 6. In the case of Mela Ram and Sons v. Commissioner of Income Tax, Punjab AIR 1956 SC 367 the Hon’ble Apex court held that an appeal presented out of time is an appeal and order dismissing it as time barred is one passed in appeal. 7. In the case of Ravneshwar Thakur v. Neeraj Kumar Thakur 1996 (1) PLJR 494 a division bench of this Court considering this question directly 7 and then considering the decision of the Apex Court in the case of Mela Ram and Sons (Supra) and the case of Thambi Vs. Mathew (Supra) and also the case of Sheodan Singh Vs. Daryao Kunwar (Supra) held that rejection of memorandum of appeal on the ground of limitation is not appealable in all 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 the 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, the in limine rejecting of the memorandum will not amount to decree as there is no determination of the rights of the parties by the trial court. 8. In 2005 (1) PLJR 137 SC the three Judges Bench of the Apex Court in the Case of Shyam Sundar Sarma v. Pannalal Jaiswal and others subsequent to the decision relied upon by the learned counsel for the petitioner held at paragraph 10 as follows : “10. The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi vs. Mathew, 1987 (2) KLT 848. Therein, after referring to the relevant decisions on 8 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 a 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.” 9. In view of the above consideration and various decisions of the Apex Court as well as the other High Court and also the Division Bench of this Court the impugned order against which this application under Article 227 of the Constitution of India has been filed, in my opinion, is a “decree” within the meaning of Section 2 sub-section 2 C.P.C. because in the present case, the trial court by judgment and decree dated 15.1.2003 has already determined the rights of the parties which has been affirmed by the lower appellate court dismissing the appeal. The suit has not been dismissed on technical ground. 10. Since the petitioner has filed this application 9 under Article 227 of Constitution of India appears to be bona fide, I permit the petitioner to convert this writ application to an appeal under Section 100 of the Code of Civil Procedure as Second Appeal is maintainable against the impugned order as such the writ is not maintainable. The petitioner must convert this writ application within the next ten days. S.S. A.F.R. (Mungeshwar Sahoo, J.)