KASHI RAM Vs. STATE OF U.P.

JUDGEMENT

(1.) This is a writ petition under Article 227 of the Constitution of India challenging an order dated 29.9.2018 passed by the IIIrd Addl. District and Sessions Judge/Raebareli in Misc. Case (Civil) No.R- 143 of 2011 dismissing the application of the petitioner under section 5 of the Limitation Act 1963 for extension of limitation and condonation of delay in filing the appeal under section 96 read with Order XLI of the Code of Civil Procedure 1908.

(2.) The preliminary point to be considered in this case is as to whether the remedy against such an order is by way of a petition under Article 227 of the Constitution of India or by way of a second appeal under section 100 C.P.C. This question has recently been considered and decided by this Court vide judgment dated 18.12.2019 passed in Writ Petition No. 25879 (MS) of 2019, Ram Prasad and ors. in the following terms :

(3.) A question arose during the course of hearing as to the maintainability of this petition and whether a second appeal under section 100 C.P.C. would not lie against the impugned judgment ? In response, the learned counsel for the petitioner submitted that the order which has been impugned herein does not fall within the definition of decree under section 2(2) of the Code of Civil Procedure Code 1908, as it does not conclusively determine the rights of the parties with regard to all or any of the matters in controversy in the appeal arising out of the suit, instead it only rejects the application under section 5 of the Limitation Act 1963 which was registered as a separate miscellaneous case. As no decree of such an order is prepared, a second appeal under section 100 C.P.C. will not lie as it lies against appellate decrees.