MAMUDA KHATEEN Vs. BENIYAN BIBI

JUDGEMENT

(1.) This matter has been referred under Chapter VII, Rule 2 of the Appellate Side Rules to a larger Bench by a Division Bench consisting of Mr. Justice A, C. Gupta and Mr. Justice S. C. Deb for a decision on the following question: Is an order rejecting the memorandum of appeal following the rejection of application under Section 5 of the Limitation Act for condonation of the delay in filing the appeal a decree ?

(2.) In the instant case, the proposed appeal to the first appellate Court, namely, the Court of the District Judge, was barred by limitation. An application was made under Section 5 of the Limitation Act for condonation of delay and the memorandum of appeal was sought to be filed along with the application. The application under Section 5 was rejected. It also appears that an order was made rejecting the memorandum of appeal. The question is whether the order rejecting the memorandum following the rejection of the application under Section 5 is a decree.

(3.) The referring Bench has noted a few conflicting decisions of this Court. In Sudhansu Bhusan Pandey v. Majhe Bibi, reported in (1938) 42 Cal WN 72 Mr. Justice Biswas expressed a tentative view that an order rejecting the memorandum of appeal would be a decree.