Whether appeal which is dismissed as barred by limitation is decree under
section 2 (2) of Code of civil procedure, 1908?
Question of Law
An Appeal fled along-with 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, held Supreme Court in Shyam Sunder Sarma Vs. Pannalal
Jaiswal, (2005) 1 SCC 436 ; AIR 2005 SC 226.
A decree is defined in Section 2 (2) of the Code of Civil Procedure, 1908 as
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
- (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 dispose of the suit. It may be partly preliminary and
The provisions of Rule 3-A of Order 41 CPC introduced by the Amendment Act 104
of 1976 was brought into force on the basis of the 14th & 27th Reports of the
In its 27th Report, the Law Commission recommended as under:
In the Fourteenth Report, attention was drawn to the practice which was
previously followed of admitting an Appeal subject to objections as to
limitations being raised at the time of hearing, where, the Memorandum of Appeal
was accompanied by a Petition seeking condonation of delay under Section 5 of
Limitation Act, 1963.
This practice has been disapproved by the Privy Council, which has stressed the
expediency of adopting a procedure securing at the stage of admission the final
determination (after due notice) of question of limitation affecting the
competence of the Appeal. Following this advice, the High Courts of Andhra
Pradesh, Bombay and Madras have made appropriate amendments to the Rule, and the
Fourteenth Report recommended that similar amendments be made by other High
The proposed amendment carries out this recommendation, and follows the Madras
Amendment, Order XLI, Rule 1 (3) with verbal modifications. The Bombay amendment
is contained in Order XLI, Rule 3-A (Bombay).
The provision was accordingly introduced by the Amendment Act with a view to
secure at the stage of admission of the Appeal a final determination on the
question of limitation. R 3-A of Order 41 CPC reads as under:
- 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
- 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
- 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 Sub-rule (1) that there is a proper presentation of the Appeal
filed out of time if it is accompanied by the Application to condone delay
supported by an affidavit setting forth the grounds for the condonation of
delay. Sub-rule (2) requires the Application to 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. A dismissal of the Application for condonation of delay results in the
dismissal of the Appeal which can only be under Rule 11.
Section 3 of the Limitation Act also requires an Appeal filed after the
prescribed period of time to be dismissed subject to the provisions contained in
Sections 4 to 24. Sub-rule (3) of Rule 3-A does not render an Appeal properly
presented under Sub-rule (1), a proposed Appeal. Sub-rule (3) in spite of its
language would only mean that no stay of the execution of the decree appealed
against 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 all practical purposes (Vide Musala Annaji Rao
Vs Bogarapu Papaiah Setty, AIR 1975 Andh Pradesh 73).
The question, Whether an Appeal properly presented with a Petition to condone
the delay can be admitted or not, is at the second stage and to reach that stage
the Application has to be disposed of finally.
Section 3 of the Limitation Act also makes it obligatory on the part of the
Court to dismiss an Appeal presented out of time subject, of course, to the
provisions of Sections 4 to 24. 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, though on the ground of limitation, is not a decree?
The question is:
Whether a dismissal of the Appeal after considering an Application to condone
the delay should be treated differently?
An appeal filed out of time is required to be dealt with by the Appellate Court
under Section 3 of the Limitation Act and an order dismissing the Appeal is a
decree that can be subject of a second appeal as held by the Full Bench in
Haji Hassan Rowthers case (AIR 1972 Ker 56). Sub-rule (4) of Rule 11 of
Order 41, CPC requires an Appellate Court, not being the High Court, dismissing
an Appeal under Sub-rule (1) 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
postulates the drawing up of a decree which can be the subject of a further
Appeal under Order 41, Rule 1 read with Order 42, CPC. Sub-rule(4) of Rule 11
does not dispense with the need of a decree when the High Court dismisses an
Appeal under Sub-rule (1). The only exception is that it need not deliver a
judgment recording its reasons for dismissing the same.
Reverting to the facts as projected in Appeal (Civil) No. 5550/2014 titled
Shyam Sunder Sarma Vs. Pannalal Jaiswal, the Respondent No.1 therein filed
Title Suit No.89 of 1992 on the file of the Munsifs Court at Howrah against the
Appellant & Ors., for a declaration of his title as a Thika Tenant in respect of
the Schedule Property & for other consequential reliefs. The Appellant -
defendant No.1 in the Suit, entered appearance and contested the Suit and the
Application for Interim Injunction filed by the Plaintiff.
The Application for Interim Injunction was heard and the same was dismissed by
the Trial Court. The Plaintiff filed an Appeal against that Order under Order
XLIII Rule 1 of the Code of Civil Procedure, 1908 (for short the Code) and that
Appeal was also dismissed by the District Judge on 16.03.1994.
The Suit itself stood posted to 08.10.1996. The Appellant the first defendant,
did not appear. The evidence of the Plaintiff was recorded. On 09.10.1996 the
Plaintiff filed two applications (a) One for an amendment of the Plaint and (b)
the other for certain corrections in the Plaint. Those Applications were allowed
the same day in the absence of any opposition. In view of his absence, the first
defendant, the Appellant, was set ex parte and on 11.10.1996, the Suit was
decreed ex parte.
On 16.11.1996, the first defendant, the Appellant, filed a Petition under Order
IX Rule 13 of the Code of Civil Procedure accompanied by an Application under
Section 5 of the Limitation Act for condoning the delay in filing the Petition
for setting aside the ex parte decree.
Both the Applications were opposed by the Plaintiff. On 21.11.1996, the first
defendant the Appellant, also filed an Appeal, Title Appeal No. 157 of 1996,
against the ex parte decree along with an Application for condoning the delay in
filing that Appeal as enjoined by Order XLI Rule 3-A of the Code of Civil
Procedure and invoking Section 5 of the Limitation Act.
On 17.09.1998, the Trial Court allowed the Application filed by the first
defendant under Section 5 of the Limitation Act and condoned the delay in filing
the Petition under Order IX Rule 13 of the Code of Civil Procedure. The
Plaintiff challenged that Order in the District Court in Revision, but the
Revision Petition was dismissed on 11.08.2000. There was a further Revision to
the High Court which was dismissed on 14.09.2000.
On 21.01.2000, since the first defendant the Appellant, did not appear to
prosecute his Application under Section 5 of the Limitation Act in Title Appeal
No. 157 of 1996, his Appeal against the ex parte decree, the District Court
dismissed that Application for non taking of steps, resulting in default. On
06.03.2000, in view of the non-appearance of the first defendant the Appellant,
Title Appeal No. 157 of 1996 against the ex parte decree itself was dismissed
for default. In other words, both the Application under Section 5 of the Act for
condoning the delay in filing that Appeal and the Appeal against the ex parte
decree filed by the first defendant stood dismissed for default.
In the Trial Court, the Petition for setting aside the ex parte decree filed
under Order IX Rule 13 of the Code of Civil Procedure came up for hearing. On
behalf of the Plaintiff, an objection was raised that in view of the filing of
Title Appeal No. 157 of 1996 by the first defendant against the ex parte decree
and in view of the explanation to Order IX Rule 13 of the Code of Civil
Procedure, the Application under Order IX Rule 13 of the Code could not be
entertained by the Court which had passed the ex parte decree.
On behalf of the first defendant the Appellant, it was contended that since the
Appeal filed by the Appellant against the ex parte decree was dismissed for
default as a consequence of the dismissal of the Application for condoning the
delay in filing that Appeal being dismissed for default, the explanation created
no bar to the entertaining of the Petition under Order IX Rule 13 of the Code of
Civil Procedure, especially in the context of the fact that the delay in filing
that Petition had already been condoned by the Trial Court and affirmed up to
the High Court.
But, the Trial Court took the view that since the Appeal against the ex parte
decree filed by the first defendant was not withdrawn, the Petition under Order
IX Rule 13 of the Code of Civil Procedure could not be entertained or relief
granted to the first defendant in view of the explanation to Order IX Rule 13 of
the Code of Civil Procedure. Thus, the Petition for setting aside the ex parte
decree was dismissed.
The first defendant challenged that decision in an Appeal under Order XLIII Rule
1 of the Code. The Lower Appellate Court agreed with the conclusion of the Trial
Court that the explanation to Order IX Rule 13 of the Code precluded the Court
from exercising its power to set aside the ex parte decree. Thus, the Appeal was
dismissed. The first defendant challenged the same in a proceeding before the
High Court under Article 227 of the Constitution of India.
The High Court held that the question posed for decision was covered by
decisions of this Court referred to by it in its order and in the light of those
decisions the Order of the Trial Court as affirmed by the District Court, could
not be interfered with. The High Court, thus, dismissed the Petition filed by
the first defendant under Article 227 of the Constitution of India. The first
defendant has challenged this order of the High Court in this Appeal (Civil) No.
5550/2014 titled Sham Sunder Sarma Vs Pannalal Jaiswal.
The question as to:
Whether an Appeal accompanied by an Application for condoning the delay in
filing the Appeal, is an Appeal in the eye of law, when the Application for
condoning the delay in filing the Appeal is dismissed and consequently the
Appeal is dismissed as being time barred by limitation, in view of Section 3 of
the Limitation Act?.
There was conflict of views on this question before the High Courts.
But the Privy Council in Nagendra Nath Dey Vs. Suresh Chander Dey (59
Indian Appeals 283) held;
there is no definition of appeal in the Civil Procedure Code, 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.
These observations were referred to with approval by Supreme Court in Raja
Kulkarni & Ors. Vs State of Bombay, (1954 SCR 384).
The specific question involved, came to be considered by Supreme Court in M/S
Mela Ram & Sons Vs Commissioner of Income Tax, Punjab, (1956 SCR 166). The
Supreme Court held that an Appeal presented out of time is an Appeal and an
Order dismissing it as time barred is one passed in an Appeal. The Supreme Court
referred to and followed the view taken by the Privy Council and by its earlier
two respective decisions above referred to.
The Supreme Court quoted with approval the observations of Chagla C. J. in K.
K. Porbunderwalla Vs Commissioner of Income Tax, (1952) 21 ITR 63 to the
.. 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 the effect of that Order was to confirm the assessment which had
been made by the Income Tax Officer.
In Sheodan Singh Vs. Daryao Kunwar, (AIR 1966 SC 1332) rendered by four
learned Judges of Supreme Court, one of the questions that arose was as to
Whether the dismissal of an Appeal from a decree on the ground that the Appeal
was barred by limitation was a decision in the Appeal.
The Supreme Court held:
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 Trial Court on the
merits, itself amounts to the Appeal being heard and finally decided on the
merits, whatever, may be the ground for dismissal of the Appeal.
In Board of Revenue Vs M/S Raj Brothers Agencies etc., [1973 (3) SCR 492 ], the
Supreme Court approved the decision of the Madras High Court which had applied
the principle stated in M/S Mela Ram & Sons (supra).
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 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 3-A of Order XLI introduced by Amendment Act, 104 of
1976 to the Code of Civil Procedure, 1908 did not in any way affect that
principle. An Appeal registered under Rule 9 of Order XLI of the Code of Civil
Procedure 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 the decree appealed against. Thus, the position that emerges on a survey of
the authorities is that an Appeal filed along with 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.
The Supreme Court in Shyam Sunder Sarma Vs. Pannalal Jaiswal (supra) while
considering the decision laid down in Ratansingh Vs Vijaysingh & Ors., [(2001) 1
SCC 469 ] rendered by two Learned Judges holding therein that dismissal of an
application for condonation of delay would not amount to a decree and,
therefore, dismissal of an Appeal as time barred was also not a decree, held
12........the decision was rendered in the context of Article 136 of the
Limitation Act, 1963 and in the light of the departure made from the previous
position obtaining under Article 182 of the Limitation Act, 1908. But we must
point out with respect that the decisions of this Court in M/S Mela Ram &
Sons (supra) were not brought to the notice of their Lordships.
The principle laid down by a Three Judge Bench of this Court in M/S Mela Ram
& Sons (supra) and that stated in Sheodan Singh (supra) was, thus, not
noticed and the view expressed by the Two Judge Bench, cannot be accepted as
laying down the correct law on the question. Of course, their Lordships have
stated that they were aware that some decisions of the High Courts have taken
the view that even rejecting an Appeal on the ground that it was presented out
of time is a decree within the definition of a decree obtaining in the Code of
Civil Procedure, 1908. Thereafter noticing the decision of the Calcutta High
Court above referred to, their Lordships in conclusion apparently agree with the
decision of the Calcutta High Court.
Though the decision of the Privy Council in Nagendra Nath Dey Vs. Suresh
Chander Dey (supra) was referred to, it was not applied on the ground that
it was based on Article 182 of the Limitation Act, 1908, and there was a
departure in the legal position in view of Article 136 of the Limitation Act,
1963. But with respect, we must point out that the decision really conflicts
with the ratio of the decision in M/S Mela Ram & Sons (supra) and Sheodan Singh
(supra) and another decision of this Court rendered by two Learned Judges in
Rani Choudhary Vs Lt. Col. Suraj Jit Choudhary [(1982) 2 SCC 596].
In Essar Constructions Vs N. P. Rama Krishna Reddy [(2000) 6 SCC 94)
brought to our notice two other learned Judges of this Court, left open the
question. Hence, reliance placed on that decision is of no avail to the
Dismissal of an appeal on the ground of limitation was thus held as amounting to
a confirmation of the decree of the Trial Court on the merits of the
case. Thus the decree of the Trial Court gets merged in the Appellate
Courts decree even when the Appeal is dismissed on a preliminary ground or as
time-barred. The logical sequitur of the analysis is that an Appeal filed
along-with an Application for condonation of delay in filing that Appeal when
dismissed on refusal to condone the delay is a decree within the meaning of
Section 2 (2) of the Code of Civil Procedure, 1908.
Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature,
Email: [email protected], [email protected]