Sankar Prasad Mitra, C.J.
1. This matter has been referred under Chapter VII, Rule 2 of the Appellate Side Rules to a larger Bench by a Division Bench consisting of Mr. Justice A, C. Gupta and Mr. Justice S. C. Deb for a decision on the following question:
Is an order rejecting the memorandum of appeal following the rejection of application under Section 5 of the Limitation Act for condonation of the delay in filing the appeal a decree ?
2. In the instant case, the proposed appeal to the first appellate Court, namely, the Court of the District Judge, was barred by limitation. An application was made under Section 5 of the Limitation Act for condonation of delay and the memorandum of appeal was sought to be filed along with the application. Theapplication under Section 5 was rejected. It also appears that an order was made rejecting the memorandum of appeal. The question is whether the order rejecting the memorandum following the rejection of the application under Section 5 is a decree.
3. The referring Bench has noted a few conflicting decisions of this Court. In Sudhansu Bhusan Pandey v. Majhe Bibi, reported in (1938) 42 Cal WN 72 Mr. Justice Biswas expressed a tentative view that an order rejecting the memorandum of appeal would be a decree.
4. In Rakhal Chandra Ghosh v. Ashutosh Ghosh, (1913) 17 Cal WN 807 a Division Bench of this Court held that an order by an appellate Court rejecting an appeal before it has been admitted, on the ground that it was presented out of time, is a decree within the meaning of the definition of Sub-section (2) of Section 2 of the Code of Civil Procedure.
5. A contrary view was taken by another Division Bench. In Jnanadasundari Shaha v. Madhabchandra Mala, (ILR 59 Cal 388 = (AIR 1932 Cal 482). It was held that an order rejecting a memorandum of appeal, written on paper insufficiently stamped, for non-payment of the deficit court-fee within the time allowed by the Court, was not a decree within the meaning of Sub-section (2) of Section 2 of the Code.
6. This judgment in ILR 59 Cal 388 = (AIR 1932 Cal 482) was followed by a Division Bench of Mr. Justice Nasim AH and Mr. Justice Henderson in Charusila Dasi v. Abhilas Bauri. 40 Cal WN 1149 = (AIR 1936 Cal 804). This Division Bench also held that an order rejecting the memorandum of appeal was not a decree.
7. It seems to us that when an appeal is barred by limitation and an application is made under Section 5 of the Limitation Act for condonation of the delay along with the memorandum of appeal, until the application under Section 5 is allowed the appeal cannot be filed or admitted at all. In other words, till a favourable order is made on the application under Section 5 the appeal is non est. In that event, the question of rejecting a memorandum of appeal does not arise at all at this stage.
8. If the application under Section 5 be rejected the order rejecting the application cannot be a decree. And theorder rejecting the memoraundum of appeal is merely an incidental order.
9. Our answer therefore to the question referred to us is that an order rejecting the memorandum of appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of the delay in filing the appeal is not a decree but an order against which an application in revision under Section 115 of the Code may lie but no appeal under Order 43, Rule 1 of the Code can be preferred.
10. In the premises aforesaid, the appeal is dismissed. There will be no order as to costs.
11. We are told that the appellants have also made an application under Section 115 of the Code read with Section 5. They would be at liberty to proceed with the said application if so advised.
Sabyasachi Mukharji, J.
12. I agree.
Salil Kumar Datta, J.
13. I agree.