N. K. JAIN, C. J, J.

( 1 ) A learned single Judge of this Court while considering this Appeal arising out of the judgment and decree dated 11-9-1998, passed in R. A. No. ,13 /1998, has opined that the decision of this Court in Kanji moorarji v. S. V. Hegde (1979)1 Kant LJ 249 is contrary to the decision of the Supreme court in Rani Choudhary v. Suraj Jit Choudhury AIR 1982 SC 1397, referred the matter to the Division Bench, and in turn a division Bench of this Court vide order dated 7-4-2003 has referred the matter to the larger bench and ordered to place the matter before the Chief Justice for constituting the larger Bench, As per direction of the Chief justice issued pn 7-7-2003 this reference has come up before us.

( 2 ) THE question for consideration is hether an order dismissing the Appeal following the rejection of application under Section 5 of the Limitation Act for condoning the delay in filing the appeal, is a decree passed in appeal within the meaning of Section 100 of the Code of Civil Procedure.

( 3 ) THE necessary facts in the instant case to be stated before dealing with the above question, are : respondents 1 to 13 herein filed O. S. No. 264/1989 on the file of the I Addl. Munsiff, dharwad, against the appellant herein and respondent No. 14, seeking for a declaration that the rateable value fixed by Appellantcorporation in respect of shops in the occupation of the plaintiffs is illegal, void, ultra vires and unenforceable, and for the consequential relief of injunction to restrain the appellant from recovering tax based on the said proceedings against the Plaintiffs directly or through Respondent No. 14 herein. The defendants resisted the suit. After trial, the trial Court answered the issues in favour of the plaintiffs and decreed the suit as prayed for. Being aggrieved by the said judgment and decree, the first defendant, appellant herein, filed R. A. No. 13/1993 on the file of the III Addl. Civil Judge (Sr. Dn.), dharwad, and since there was delay of 70 days in preferring the appeal, I. A. No. I was filed under Section 5 of the Limitation Act seeking for condonation of the said delay in preferring the first appeal. The first Appellate Court by its order dated 11-9-1998 rejected I. A. No1 with costs and as a consequence, the Appeal was dismissed as barred by time. Accordingly, decree was drawn in form No. 9 (Civil) under Order 41 Rule 35, c. P. C.

( 4 ) AS stated, the learned single Judge as well the Division Bench, considering the contentions of the parties regarding maintainability of the Appeal and with a view that the decision on this point will settle a number of cases pending, have referred the matter. In other words, the question is whether an Appeal or Revision lies against an order dismissing the application for condonation of delay.

( 5 ) S. S. Haveri, learned counsel for the appellant, submitted that delay was not condoned, the first Appeal was rejected, but a decree has been drawn under Order 41, Rule 35 CPC and a second Appeal was filed on the ground that the judgment and decree passed by the trial Court stands confirmed and merged in the decree of the first Appellate Court therefore second appeal is maintainable. In support of his contention, he has relied upon the decisions of the Supreme court in Sheodan Singh v. Smt. Daryao kunwar AIR 1966 SC 1332, Raja Kulkarni v. The State of Bombay AIR 1954 SC 73, Rani chowdhary v. Suraj Jit Chowdhary AIR 1982 sc 1397, V. M. Salgocar and Brothers Pvt. Ltd. v. Commr. of Income-tax AIR 2000 SC 1623, Kunhayammed v. State of Kerala, AIR 2000 SC 2587 and the Full Bench decision of the Kerala High Court in Thambi v. Mathew air 1988 Kerala 48.

( 6 ) ON the other hand, Ashok R. Kalyan shetty, learned counsel for Respondents 1 to 3 and 5 to 13 submitted that the first Appellate Court has not adjudicated the Appeal on merits but has dismissed it consequent upon the dismissal of the application for condonation of delay, so decree could not be passed and therefore seco

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