RAVNESHWARTHAKUR Vs. NEERAJ KUMAR THAKUR

JUDGEMENT

(1.) This civil revision has been referred to Division Bench for decision on the point as to whether an order dismissing an appeal on account of limitation as being time-barred and not on merits is appealable. The significance of the point is that revision under Section 115 of the Code of Civil Procedure is maintainable only when appeal does not lie against the order. As the point involves a pure question of law, it is not necessary to set out the facts of the case. It may only be stated that the petitioners, who were plaintiffs in the court below, instituted title suit No. 3 of 1979 for declaration about a deed of gift as being null and void. The plaint was rejected in view of the provisions of Section 4(b) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, which bars suit after publication of notification regarding preparation of consolidation scheme under Section 3(1) of that Act. The petitioners challenged the order by way of revision, C.R. No. 605 of 1980, in this Court. By judgment dated 7/12/1981 (reported in AIR 1982 Patna 75) this Court held that the order of rejection of the plaint amounted to decree and was, therefore, appealable. After dismissal of the civil revision as being not maintainable, the petitioners filed appeal, Title Appeal No. 69 of 1982, before the District Judge, Bhagalpur, on 11/10/1982 along with an application for condonation of delay under Section 5 of the Limitation Act. By the impugned order dated 27/4/1984, the District Judge rejected the limitation petition and dismissed the appeal giving rise to this revision.

(2.) Before coming to the point, it may be stated that earlier time-barred appeals (accompanied by condonation petition) were often admitted subject to objection as to limitation being raised at the time of hearing. The Law Commission in its 14th and 27th Reports noted that the practice of admitting the time-barred appeals without first deciding the question of limitation had been disapproved by the Privy Council. It also noted that following the decision of the Privy Council some of the High Courts had already made appropriate amendment in the rules. The Law Commission, accordingly, suggested introduction of the provisions which are now contained in Rule 3-A of Order XLI of the Code of Civil Procedure "for securing the final determination of the question as to the limitation even at the stage of admission of the appeal." The relevant parts of Rule 3-A are as follows:

(3.) The question as to whether dismissal of a time-barred appeal on the ground of limitation is appealable involves the question and this is the core of the matter-whether the order amounts to decree, for there cannot be any dispute that an appeal shall lie if it amounts to decree. 'Decree' has been defined in Section 2(2) of the Code, in the following manner: "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary of final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-