DES RAJ Vs. OM PARKASH

JUDGEMENT

(1.) THE question that arises for determination in the appeal is, whether the order dismissing an appeal after dismissal of an application under S. 5 of the Limitation Act is a decree with the meaning of s. 2 (2) of the Civil P. C.

(2.) BRIEFLY the facts are that the plaintiff instituted a suit for possession of the land in dispute on the ground that he had been dispossessed forcibly by the defendants. The suit was contested by the defendants who controverted the allegation of the plaintiff, and pleaded that they were in its possession with the consent of the plaintiff.

(3.) THE trial court accepted the plea of the defendants and held that they were in possession of the land with the consent of the plaintiff. consequently it dismissed the suit. the plaintiff filed an appeal before the Senior sub Judge after the expiry of the period of Limitation on 8th April, 1974. Later, on 2nd April, 1976 he filed an application under S. 5 of the Limitation Act for condoning the delay in filing the appeal. It was dismissed on the ground that there was no sufficient cause to condone the delay. In view of the dismissal of the application the appeal was dismissed by the court as barred by time. The plaintiff came up in second appeal to this court which was listed before me. An objection was taken by the counsel for the respondent that no appeal was maintainable against the impugned order as it was not a decree. Both the parties referred to a number of judgments of the various High courts in which different views had been expressed. Consequently I referred the appeal for decision to a larger Bench. That is how the matter is before us.