BANWARILAL BHOID Vs. P NEELKANTHAM

JUDGEMENT

(1.) 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 Civil Procedure Code 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 1910-62 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:

(3.) 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 Civil Procedure code. 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 Civil Procedure Code' as