SRI PARIKSHITA MALLICK Vs. MAHILA KUTIR SILPA SIKSHYASRAMA

JUDGEMENT

(1.) HEARD Mr. P.K. Mohanty, learned Counsel for the Appellant and Mr. S.K. Mishra, learned Counsel, who has entered appearance on behalf of the Respondent before the appeal has been admitted.

(2.) MR . Mishra, learned Counsel for the Respondent contends that as the first appellate Court has dismissed the appeal on the ground of limitation by refusing to condone the delay, a Second Appeal under Section 100 of the Code of Civil Procedure will not lie.

(3.) COROLLARY , therefore, would be that an appeal, either dismissed for default or on the ground of it being barred by limitation, would amount to a disposal of the appeal. The Supreme Court also approved the Full Bench decision of the Kerala High Court in the case of Thambi v. Mathew : (1987) (2) KLT 848 : AIR 1988 Ker. 48, wherein 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 subjected to Second Appeal and Rule 3A of Order XLI introduced by Amendment Act, 104 of 1976 to the Code did not in any way affect that principle.