MATHEN SIMON Vs. OUSEPH MATHAI

JUDGEMENT

(1.) I do not think that this Second Appeal against an order made on an application brought under Order XXI R. 90 of the Code I shall be referring to the provisions of the Civil Procedure Code although the application was brought under the corresponding provision in the Travancore Civil Procedure Code, the relevant provisions of the two Codes being identical lies even if it be, as in this case, that the dispute was between parties to the suit so as to attract S. 47. For, against such an order an appeal lies as an appeal from an order see Order XLIII R. 10)so that by reason of the exclusion in clause (a) of S. 2 (2), the order is not a decree. It is only against a decree that S. 100 provides a second appeal from an order which is not a decree, S. 104 (2) in express terms denies a second appeal.

(2.) NOR do I think that any purpose would be served by treating this second appeal as a revision petition under S. 115. For, the appeal before the lower appellate court was admittedly out of time and the appellant's application for condoning the delay under S. 5 of the Limitation Act was rightly dismissed by that court, his case that he was prevented by illness from bringing the appeal in time being rightly disbelieved on the evidence.