Narasimham, C.J:— This is a revision against the order of the District Judge of Koraput dated 10-10-1962 rejecting a petition under Section 5 of the Limitation Act for condoning the delay in filing title appeal No. 6 of 1962 before him, against the judgment of the Munsif of Jeypore and (as a necessary consequence to that order) rejecting the memorandum of appeal as filed beyond time. The maintainability of this revision petition was challenged on the ground that the order of the District Judge was a “decree” as defined in section 2(2) of the CPC and that, consequently the aggrieved party had the right to file a 2nd appeal, and that no revision lay. This question involves the examination of the correctness of the decision of a Single Judge of this Court reported in Achyuta Dhangada Majhi v. Sibram Dhangadamajhi, ILR (1962) Cut 818 and hence this revision was referred to a Division Bench.

2. The petitioner was the plaintiff before the Munsif of Jeypore in T.S No. 6/60. His suit was dismissed on merits by the learned Munsif on 5-12-61. He filed an appeal before the Dt. Judge on 6-2-62 on which date the appeal was time barred by five days. Along with the appeal he filed a petition under Section 5 of the Limitation Act for condoning the delay. Notice was issued to the opposite party and some evidence was also recorded on the side of the petitioner. Eventually on 19-10-62 the appellate Court held that sufficient grounds had not been made out for condoning the delay and hence it rejected the petitioner's application under Section 5 of the Limitation Act in the same order, at the end (see paragraph 6) the Court passed the following order:

“In the result, I would reject the memorandum of appeal as having been filed beyond time.”

3. In pursuance of this order a formal decree was drawn up on 23-10-62 and duly notified. As there was no objection, it was sealed and signed on 29-10-62. The operative portion of the decree is as follows:

“It is ordered that the appeal be, and the same is, hereby dismissed as barred by limitation and the judgment and decree of the Court of the Munsif of Jeypore are confirmed.”

4. If this order be held to be a “decree” within the meaning of the definition clause a Section 2(2) of the CPC, it is obvious that the remedy of the aggrieved party is only by way of 2nd appeal and not by way of Civil revision. Mr. Murty, however, contended, relying on the aforesaid decision of this Court, that the said order was not a “decree” even though it has been formally drawn up and signed as a decree. With the exception of the aforesaid decision of this Court there is no decision of any other High Court to the effect that the dismissal of an appeal on the ground that it is barred by limitation with the consequent result of affirming the judgment and decree of the lower Court, is not a “decree” as defined in the Code of Civil Procedure. On the other hand all the High Courts have uniformly taken the view that such an order would amount to a “decree”. A decree has been defined in section 2(2) of the CPC as

“2(2) “decree” means the formal expression of an adjudication which, so far at 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 47 or S. 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

5. The aforesaid definition consists of three parts. The first part would directly apply if the impugned order is held to be, “a formal expression of adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy”. Even if the impugned order does not come within the aforesaid first part, nevertheless it shall lie deemed to be a “decree” if it comes within the scope of the deeming clause in the second part of the definition section. It is true that in terms the deeming clause applies only to rejection of a plaint as provided in Or. 7, R. 11 of the CPC. But if it be held that the rejection of a memorandum of appeal will also be governed by the provision of Order 7 Rule 11 of the CPC by virtue of sub-section (2) of Section 107 of the CPC, it is obvious that rejection of memorandum of appeal as time-barred would also come within the scope of clause (d) of Rule 11 of Order 7 of the CPC and would therefore amount to a decree under the said deeming clause of the definition section. The 3rd part of the definition clause is in the nature of a proviso and expressly excluded from the definition appealable orders (sub-clause (a)) and orders of dismissal for default (sub-clause (b)). It is not stated in the definition that the default should be restricted to “default” arising out of non-appearance of a party. Giving the widest meaning to those words, it must be held that default arising out of any cause such as non-payment of the requisite court fee or any other fee or cost as directed by the Court, or failure to take necessary steps as ordered by the Court may well come within the scope of sub-clause (b).

6. There is undoubtedly a sharp conflict in the decisions of the various High Courts as to whether the deeming portion of the definition clause can be stretched so as to include the rejection of a memorandum of appeal by taking the help of sub-section (2) of section 107 of the CPC. But there could possibly be no difference of opinion with regard to those cases which come within the first part or the third part of the definition clause.

7. As early as 1884 the Allahabad High Court in Gulab Rai…(Petitioner); v. Mangli Lal…(Opposite Party).*, ILR 7 All 42 considered whether the dismissal of a memorandum of appeal as time-barred would be a “decree”. They answered this question in the affirmative for two reasons. Firstly they held, relying on section 4 of the Limitation Act, that the dismissal of an appeal as time-barred (which is mandatory) disposes of the appeal finally so far as the appellate Court is concerned, and would therefore come within the first part of the definition of the expression “decree” They were also inclined to accept the alternative argument that it would come within the scope of the deeming clause, on the principle that the rejection of a plaint mentioned in the deeming clause must be held to include rejection of memorandum of appeal, by virtue of section 54(c) and section 582 of the old CPC, 1882 which correspond to Order 7, Rule 11 and section 107(2) of the New Code. This decision has stood the test of time and has been uniformly followed by all the High Courts without a single dissentient voice till the recent judgment of this Court in ILR (1962) Cut 818 cited above.

8. In this connection, Saminatha Ayyar v. Venkatasubba Ayyar, ILR 27 Mad 21; Gunga Dassi Dey v. Ramjoy Dey, ILR 12 Cal 30 and Raghunath Gopal v. Nilu Nathaji, ILR 9 Bom 452 may be referred to. In ILR 27 Mad 21 which is of the year 1903 the contrary view was noticed and it was observed that “the balance of authority is against this view”. The learned Judges held that in view of the decisions of almost all the leading High Courts in India, they were inclined to say that the order would be a “decree”. The same question came up for consideration before the Calcutta High Court in 1913 in Rakhal Chandra Ghosh v. Ashutosh Ghosh, 17 Cal WN 807. The learned Judges, while relying on ILR 12 Cal 30 further observed as follows:

“However that may be, the order passed by the lower appellate Court construed the decree of the court of first instance and thereby conclusively determined the rights of the parties with regard to the matters in controversy in the suit. Had the appeal been admitted and then dismissed on a preliminary objection raised at the hearing that the appeal was filed out of time, there could be no question that the order dismissing the appeal though on a preliminary point, would be a decree and we do not see why an order dismissing an appeal before it is admitted should not be considered a decree. ‘In either case the decree of the Court of first instance is confirmed and the rights of the parties with regard to matters in controversy, are finally determined by the order dismissing the appeal.’”

9. These observations, specially the portions underlined, (here into) would apply fully to the facts of the case. I have already quoted the operative portion of the decree which, while dismissing the appeal as time-barred, expressly says that the judgment and decree of the Court of the Munsif of Jeypore are affirmed. It is true that there were several points in controversy before the learned Munsif and the appellant wanted to agitate all these points in the appeal also. But being conscious that the appeal was filed beyond time, he knew that unless he could succeed in getting the delay condoned under Section 5 of the Limitation Act, the appeal was likely to be rejected. Hence, he filed the application under section 5 which was rejected after being heard fully, and in the very same order the appeal was rejected as time-barred, and then the aforesaid decree was drawn up. Thus, though there was no discussion of the merits of the case in the appellate Court, nevertheless the judgment of the lower court was completely affirmed, and thereby the order of the appellate Court finally determined the rights of the parties so far as that Court was concerned.

10. Mr. Murty however contended that the first part of the definition in section 2(2) of the CPC cannot not apply because according to him merely by saying that the appeal was time-barred the appellate Court was not ‘adjudicating’ any matter. He further urged that as the appellant (petitioner) himself had admitted that the appeal was filed beyond time, the question of limitation was not “a matter in controversy” before the appellate Court. In my opinion this argument cannot prevail. There may be an adjudication even though the facts may be admitted. For instance, consent decrees are based on admission without any controversy. Nevertheless they are decrees within the meaning of the Code of Civil Procedure. Hence, merely because the appellant admitted before the appellate Court that the appeal was filed beyond time and unsuccessfully sought the aid of Section 5 of the Limitation Act it cannot be said that there can be no adjudication. Moreover, the effect of rejecting the memorandum of appeal as time-barred was to completely confirm the judgment of the lower Court in which there were several matters in controversy between the parties. These matters also were in controversy before the appellate court and would have come up for full hearing if the initial hurdle of limitation had been crossed. We are not here concerned with the reasons given by the lower appellate court for affirming the judgment and decree of the lower court, but the fact remains that they were affirmed and thereby there was a formal expression of adjudication on all matters in controversy within the meaning of the definition clause.

11. Subsequent decisions also have adopted the same view. Thus, in Adarpriya Choudhrani…Plaintiff, v. Ramprotap Agarwalla…Defendant, ., AIR 1926 Cal 1105 it was assumed that such an order was a decree and there was no discussion as presumably nobody challenged this view. In Gajadhar Bhagat v. Moti Chand, AIR 1941 Pat 108 the learned Judge observed: “It is well settled that the rejection of a memorandum of appeal as being out of time does amount to a decree and is appealable.” That question was taken to be beyond controversy. Reference may also be made, in this connection, to Keshomal v. Panchulal, AIR 1953 Ajmer 32; Mangal Ballav Roaza v. Smt. Nihar Prava Mutsuddi, AIR 1959 Tripura 6 and Loli Kaikh v. Peli Sibo, AIR 1959 Manipur 13.

12. The only decision which Mr. Murty could cite in his support after laborious research, is a recent decision of the Allahabad High Court reported in Hiralal v. Jhunnilal, AIR 1964 All 190. The facts are not very clear from the report. P. appears that there the revision was filed against the order of the lower appellate Court rejecting the application under Section 5 of the Limitation Act, for condoning the delay. It is not clear whether in the same order the appeal was also rejected as time-barred, and whether in pursuance of that order a formal decree was drawn up. The argument of counsel reported in paragraph 5 of the judgment shows that when the civil revision was under consideration before the High Court, the attention of that Court was drawn to the fact that “subsequent to the rejection of the application for condonation of the delay a decree was drawn up” The learned Judge held in those circumstances, that a revision against the order rejecting the petition for condoning the delay would lie. He rested his view partly on the fact that the existence of an alternative remedy (meaning the right of appeal) can never be an absolute bar to the exercise of his power under Section 116 of the CPC for curing manifest injustice. We are not here concerned with the correctness of this view, but it is sufficient to say that judge was conscious of the fact that the impugned order may be a “decree” with the consequent right of appeal. This decision cannot therefore be held to be sufficient authority for the view put forward by Mr. Murty.

13. It is true, as already pointed out, that there is a sharp conflict of judicial opinion as to whether the deeming provision of the definition clause in section 2(2) of the CPC can be stretched so far as to apply to rejection of a memorandum of appeal also. In Surajpal Pandey v. Uttim Pandey, AIR 1922 Pat 281 and Ramsawari Kuer v. Motiraj Kuer, AIR 1939 Pat 83 and Radhanath Jha v. Bicha Lal Jha (S) AIR 1955 Pat 370 (FB) where the appeals were dismissed for non-payment of deficit court-fee or on the ground that the memorandum of appeal was insufficiently stamped such dismissal was held to be a decree by virtue of the deeming clause. In Jogesh Chandra v. Profulla Nalini Dasi, ILR (1951) 1 Cal 642 and in Phaltan Bank v. Baburao, AIR 1954 Bom 43 a contrary view was taken. The Bombay judgment requires some discussion as it appears to have very much influenced the learned single Judge of this Court. In that case, the sole question for consideration was whether an order of dismissal of an appeal on the ground that the requisite court fee was not paid would be a decree within the meaning of section 2(2) of the CPC. Their Lordships held that the deeming provision of the latter part of that section must be limited to rejection of plaints only and not to rejection of memorandum of appeals though the rejection of such memorandum of appeals would also be permitted by virtue of section 107(2) read with O. 7, R. 11 of the Code. But as an alternative argument, they pointed out that the failure to pay the requisite court fee would amount to “default”, and that consequently sub-clause (b) of the third part of the definition would, in terms, be attracted. Hence, bearing in mind the point that arose for decision in that case and the two alternative views on the strength of both of which such an order was held to be a decree, 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 principles 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) of the CPC becomes somewhat academic in view of my holding that the first part of the definition clause would, in terms, apply.

14. I may also, in this connection refer to Shop of Battu Ramiah Latchayya v. Rechintala Veeriah, AIR 1961 Andh Pra 112 where it was held that by virtue of section 107(2) of the CPC the provisions of Order 7 Rule 11 of the CPC can be applied while construing the applied order for the purpose of deciding whether it was a decree or not.

15. There was some argument at the Bar as to whether the impugned order could be held to have been passed under Rule 11 of O. 41. Mr. Ramdas the opposite party contended that it was so as such it would be a decree and that it was not necessary to take the aid of Section 107(2) of the CPC. Mr. Murty, however, urged that as Rules 9 to 15 of Order 41 have been placed under the head “Procedure on Admission of Appeal”, an order under O. 41 R. 11 can be passed only after an appeal is admitted and the appeal is heard on merits, and that it cannot apply where the appeal is rejected in limine as time-barred, on the admission of the appellant himself. The precise stage when a memorandum of appeal can be said to have been “admitted” may not be easy to determine but it is academic to discuss this question here in view of what has been discussed in the preceding paragraphs.

16. The principle of stare decisis is also against the contention of Mr. Murty. From 1884 till now the consistent view of all High Courts is in favour of holding that the impugned order is a decree. There is no special reason why merely because of a conflict of view so far as the applicability of the deeming provision of S. 2(2) to memorandum of appeals is concerned, the settled view which has remained unchallenged for such a long period should be upset. All those conflicting cases deal with either non-payment of court fee or failure to pay costs or other reasons which could as well be brought within the scope of Sub-clause (b) of the third part of the definition.

17. Moreover, the learned Single Judge of this Court has not considered lie 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. His observation to the effect that

“no distinction, in principle, can be made between the rejection of memorandum of appeal on the ground of its being insufficiently stamped and its being barred by limitation”

seems somewhat wide. If a memorandum of appeal is insufficiently stamped and the defect is not rectified within the time given by the Court, such omission on the part of the appellant may amount to “default” within the meaning of sub-clause (b). But by the mere filing of a time-barred appeal it cannot be said that there was any “default” on the part of the appellant in his dealings with the Court. It cannot, therefore, be said that there is no distinction in principle between these two acts or omission of the appellant. With great respect, therefore, we are unable to agree with the view taken by the learned Single Judge.

18. For these reasons, the revision is held to be not maintainable. Both parties will bear their own costs.

19. At the conclusion of the argument Mr. Murty filed a petition for converting this civil revision into a Second appeal on payment of necessary court fee. This will be considered in due course on merits after notice to all parties concerned.

20. Das, J.:— I agree that the Civil Revision is not maintainable. I may add that at the admission stage of the Civil Revision (C.R 277/61), a case identical in nature and finally disposed of by my learned brother Misra, J. (since reported in ILR (1962) Cut 818) I took the view that an order of dismissal of a time-barred appeal, consequential upon the rejection of an application under Section 5 of the Limitation Act, is not appealable and the only way to challenge the said order is by way of a Civil Revision Petition under section 115 of the CPC. But now after a full hearing on the subject, and in consideration of the weight of the authorities discussed in the judgment of my Lord the Chief Justice, I am clearly of the view that such an order of dismissal would amount to a ‘decree’ and as such is appealable. In that view of the matter, I agree that the case reported in ILR (1962) Cut 818, does not represent the correct view of the law.

AI/AGJ/V.B.B

21. Revision held not maintainable.