S.C. Gupte, J.

1. By consent the Second Appeal is taken up for hearing at the admission stage, since it involves a short question of law as noted herein below. This Second Appeal arises from a decision of the First Appellate Court refusing to entertain the Appeal preferred by the Appellant herein from the decree passed by the Civil Judge, Junior Division, Mohol against the Appellant. The decree was passed ex-parte on the Respondent's suit granting permanent injunction directing the Appellant not to obstruct his peaceful possession of the suit property.

2. It was the case of the Appellant before the First Appellate Court that no notice of the suit was served on the Appellant. It was the Appellant's case that he did not know about this suit, that he had filed Regular Civil Suit No. 345 of 2012 against the Respondent for partition and possession of the suit property and when the Respondent filed his written statement in that suit referring to the ex-parte decree, the Appellant came to know about the filing of the suit, and that he thereafter applied for a certified copy of the Judgment and Decree passed in the Respondent's suit and after getting the same, filed his Appeal.

3. There was a delay of about 11 years 4 months and 16 days in filing the Appeal. The Appellant applied for condonation of this delay. The First Appellate Court by its impugned order dated 26 March 2014 rejected the Appellant's application for condonation of delay. While rejecting the application, the First Appellate Court held that admittedly the suit summons was served on the Applicant/Defendant, but that he had failed to appear in the Court and accordingly the suit was proceeded ex-parte and the impugned decree was passed. The First Appellate Court, in the premises, came to the conclusion that the Appellant was negligent in prosecuting the Appeal and had no sufficient or reasonable cause for the delay.

4. A preliminary objection is raised to the maintainability of this Second Appeal by learned Counsel for the Respondent. It is submitted that an order refusing to condone the delay in filing the Appeal and dismissing the Appeal on that footing does not amount to a decree of the Appellate Court. Learned Counsel relies on a decision of the Supreme Court in the case of Chandi Prasad and others v. Jagdish Prasad and others, (2004) 8 SCC 724 : 2005 (5) AllMR 339 (S.C.) and submits that when an appeal is dismissed on the ground that delay in filing the same is not condoned, there is no merger between the decree passed by the Trial Court and the dismissal order passed by the Appellate Court. In the premises, it is submitted that there is no effective decree passed by the Appellate Court and no Second Appeal lies to this Court under Section 100 of the Code of Civil Procedure.

5. Learned Counsel for the Appellant counters this submission by relying on the decision of the Supreme Court in the case of Shyam Sundar Sharma v. Pannalal Jaiswal and others, (2005) 1 SCC 436 : 2005 (5) AllMR 152 (S.C.). Relying on this decision, it is submitted that when an appeal is dismissed on refusal to condone the delay, there is nevertheless a decision in the appeal and the fact that there is no merger of the decree of the trial court in the decision of the appellate court, does not imply either that there is no decision in the appeal or that there is no decree passed by the appellate court.

6. As noticed by the Supreme Court in the case of Shyam Sundar Sharma [2005 (5) AllMR 152 (S.C.)] (supra), the Privy Council in the case of Nagendra Nath Dey v. Suresh Chandra Dey as also the Supreme Court in the case of Mela Ram and Sons v. CIT has considered the concept of an appeal. There is no definition of "appeal" in the Civil Procedure Code. The Privy Council in Nagendra Nath Dey's case held 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 l