Jyotirmoyee Nag, J.
1. Along with the Rule, there is an application Under Section 5 of the Limitation Act in respect of the instant revisional application. By an order dated 8-4-75, P. K. Banerjee, J. when issuing the Rule directed that the application for condonation of delay be considered at the time of hearing of the Rule. In that application in paras 4 and 5 an explanation has been given by the petitioner why the revisional application could not be filed in time. I am satisfied with the explanation given and accordingly I condone the delay and I take up the matter (the revisional application) for hearing.
2. This revisional application is made against the judgment and order dated 10th Dec. 1974 passed by Sri S. K. Biswas, Additional District Judge, 2nd Court, Howrah, passed in Misc. Appeal No. 39 of 1974 reversing the order made in Misc. Case No. 41 of 1971 by the learned Munsif, 1st Court, Howrah. The petitioner filed a Title Suit, being Title Suit No. 140 of 1967 for dissolution of partnership and for accounts. The defendants Nos. 1 and 2 appeared in the suit and filed written statement. A decree was passed on 16-11-71 ex parte as the defendants failed to appear or to take any steps. Against that ex parte decree an appeal was preferred. At the same time an application for restoration under Order 9, Rule 13, CPC was also made before the learned Munsif. aS no steps for stay of hearing of the appeal was taken it was disposed of before the restoration matter was taken up by the learned Munsif. So far as the appeal was concerned the memo, of appeal was rejected as being out of the application for condonation of delay being also rejected. But no appeal was preferred against the order of rejection of the memo, of appeal passed by the learned Judge. When the restoration matter came up before the learned Munsif he dismissed it on the ground that as the appeal had been disposed of he was not competent to hear the matter under Order 9 Rule 13 of the C. P. C. Against that order the opposite party preferred an appeal. The lower appellate court remitted the case back to the learned Munsif on the ground that the rejection of memo, of appeal is not dismissal of the appeal and, therefore, the lower court's judgment and decree did not merge with the appellate decree. Against that order of the lower appellate court the present petitioner has come up in revision.
3. The question before me is whether the rejection of the memo of appeal tantamounts to rejection of the appeal and whether the judgment of the learned Munsif merges in the- order of the appellate court. The learned Munsif was of the view that he had no jurisdiction to set aside the ex parte decree under Order 9 Rule 13, C. P. C. after the same has been affirmed by the appellate court by rejection of the memo, of appeal and according to him, whether the appeal was dismissed on merits or it was dismissed summarily, as in the present case, as being time barred, is irrelevant. Accordingly the decree of the original court had merged in the order of the appellate court by rejection of the memo, of appeal and, therefore, he was incompetent to hear the restoration matter. The lower appellate court Judge, however, found that rejection of memo, of appeal is not the same as rejecting the appeal or dismissing the appeal. Hence there can be no merger of the decree passed by the Court below with that of the order passed by the learned Judge in appeal. Hence there was no bar for learned Munsif to hear the application under Order 9 Rule 13 C. P. C.
4. Mr. Susanta Kumar Chatterjee, Advocate, appearing for the opp. party, argued that a memorandum of appeal is not equivalent to an appeal and in this connection he has referred me to the decision reported in : 1SCR505 (Lakshmiratan Engg. Works Ltd. v. Aastt, Commr. Sales Tax, Kanpur) wherein the expressions appeal and memorandum of appeal have been interpreted as 'making an appeal is not equivalent to the memorandum of appeal.' It has been held in that case that
'Even under Order 41 of the Civil P. C. the expressions 'appeal' and 'memorandum of appeal' are used to denote two distinct things. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purpose of the rules of the Court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax as required under the U. P. Sales Tax Act and Rules.'
That case did not decide the question as to the effect of rejection of memo, of appeal on the ground of limitation. For that purpose reference may be made to the case reported in : 29ITR607(SC) (Mela Ram & Sons. v. Commr. of Income Tax Punjab). When discussing this aspect of the matter their Lordships found as follows : (at P. 371)
'The question still remains whether the view taken in AIR 1949 Bom 400 and : AIR1952Bom157 that an appeal which is filed beyond the period of limitation is, in the eye of law, no appeal, unless and until there is a condonation of delay, and that, in consequence, an order passed thereon cannot be held to be passed in appeal so as to fall within Section 31, is right. A right of appeal is a substantive right, and is a creature of the statute.
Section 30(1) confers on the assessee a right of appeal against certain orders, and an order of assessment Under Section 23 is one of them. The appellant, therefore, had a substantive right u/s 30(1) to prefer appeals against orders of assessment made by the Income Tax Officer'.
Their Lordships further held that : 'If an appeal is not presented within that time does that cease to be an appeal as provided u/s 30(1)?.
It is well-established that rules of. limitation pertain to the domain of adjectival law, and that they operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with Section 30(1) must, therefore, be an appeal in the eye of law, though having been presented beyond the period mentioned in Section 30(2) it is liable to be dismissed in limine. There might be a provision in the statute that at the end of the period of limitation prescribed, the right would be extinguished as for example, Section 28, Limitation Act, but there is none such here.'
On the other hand, in conferring a right of appeal Under Section 30(1) and prescribing a period of limitation for the exercise thereof separately Under Section 30(2) the Legislature has evinced an intention to maintain the distinction well recognised under the general law between what is a substantive right and what is a matter of procedural law. Sir Dinshaw Mulla construing the word 'appeal' in the third column of Article 182 Limitation Act, observed :
There is no definition of appeal in the Civil P. C. but their Lordships have no doubt that any application by a party to an appellate court asking it to set aside or revise a decision of a subordinate court is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent.
In Raja Kulkarni v. State of Bombay AIR 1954 SC 73 at p. 74; in Promotho Nath Roy v. W. A. Lee, AIR 1921 Cal 415 an order dismissing an application as barred by limitation after rejecting an application Under Section 5, Limitation Act, to excu.se the delay in presentation was held to be passed on appeal within the meaning of Section 109 C. P. C.
5. In view of the principles laid down in the above decisions, I must find that the learned Munsif was right in refusing to hear the matter under Order 9 Rule 13 C. P. C. after the memorandum of appeal was rejected by the learned Judge on the ground of limitation as that was an order passed in appeal and thereby the judgment and decree of the trial court was affirmed.
6. Accordingly, I set aside the order of the learned Judge dated 10-12-70 (74) and affirm the judgment passed by the learned Munsif and make the Rule absolute.
7. I make no order as to costs.