TENGARI KOERI Vs. JHAGRU KOERI

JUDGEMENT

(1.) This appeal by the defendants is directed against the order of the then District Judge of Shahabad, who, by his composite order dated the 21st August, 1963, rejected the appellants' application under Section 5 of the Limitation Act, 1908 for the condonation of the delay in filing the appeal before him and dismissed the appeal as barred by time.

(2.) This appeal was placed before U. N. Sinha, J., who, by his order dated the 29th March 1968, referred the case to a Division Bench, as the maintainability of this appeal was challenged before his Lordship and no authoritative decision of this Court was on the point. It has, therefore, to be decided whether a second appeal would lie from the order of the District Judge. It cannot be disputed that the order dismissing the appeal as barred by time conclusively determined the matter in controversy between the parties so far as the court of the District Judge was concerned. "Decree" has been defined in Section 2(2) of the Code of Civil Procedure as:

(3.) The aforesaid decisions make it abundantly clear that a second appeal is maintainable from the order of the District Judge rejecting the memorandum of appeal as barred by time.