An order dismissing an appeal on the ground of limitation as being time-barred and not on merits is not appealable in all cases. Where the appeal is against a decision of the trial court on merits, such rejection would amount to decree and be, therefore, appealable, where, however, the trial court has disposed of the case on a preliminary point or on technical ground without deciding the dispute on merit, in limime rejection of the memorandum will not amount to decree as there was no determination of the rights of the parties by the trial court and the principal laid down in Sheodan Singhs case will not be applicable. In such cases revision will be maintainable.

S.N.Jha, J.

1. This civil revision has been referred to Division Bench for decision on the point as to whether an order dismissing an appeal on account of limitation as being time-barred and not on merits is appealable. The significance of the point is that revision under Sec. 115 of the Code of Civil Procedure is maintainable only when appeal does not lie against the order. As the point involves a pure question of law, it is not necessary to set out the facts of the case. It may only be stated that the petitioners, who were plaintiffs in the court below, instituted title suit No. 3 of 1979 for declaration about a deed of gift as being null and void. The plaint was rejected in view of the provisions of Sec. 4(b) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, which bars suit after publication of notification regarding preparation of consolidation scheme under Sec. 3(1) of the Act. The petitioners challenged the order by way of revision, C.R. No. 605 of 1980, in this Court. By judgment dated 7.12.81 reported in AIR 1982 Patna 75 this Court held that the order of rejection of the plaint amounted to decree and was, therefore, appealable. After dismissal of the civil revision as being not maintainable, the petitioners filed appeal, Title Appeal No. 69 of 1982, before the District Judge, Bhagalpur, on 11.10.82 along with an application for condonation of delay under Sec. 5 of the Limitation Act. By the impugned order dated 27.4.84, the District Judge rejected the limitation petition and dismissed the appeal giving rise to this revision.

2. Before coming to the point, it may be stated that earlier time-barred appeals (accompanied by condonation petition) were often admitted subject to objection as to limitation being raised at the time of hearing. The Law Commission in its 14th and 27th Reports noted that the practice of admitting the time-barred appeals without first deciding the question of limitation had been disapproved by the Privy Council. It also noted that following the decision of the Privy Council some of the High Courts had already made appropriate amendment in the rules. The Law Commission, accordingly suggested introduction of the provisions which are now contained in Rule 3-A of Order XLI of the Code of Civil Procedure "for securing the final determination of the question as to the limitation even at the stage of admission of the appeal." The relevant parts of Rule 3-A are as follows:

(1) Where an appeal is presented after the expiry of the period of limitation specified there for it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he has sufficient cause for not preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without issue of notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal be under Rule 11 or Rule 13 as the case may be.

The eventuality of determining the question of limitation as envisaged and mandated by Sub-rule (2)"before it (court) proceeds to deal with the appeal" will, of course, arise only when an application under Sec. 5 of the Limitation Act has been filed. This Court in AIR 1983 Patna 189, has held that the provisions as contained in Sub-rule (i) are not mandatory and the application for condonation of delay can be filed later also. In cases where application for condonation of delay is not filed a time-barred appeal has to be dismissed under Sec. 3 of the Limitation Act even if the defendant does not take the plea. Where the limitation petition is rejected, there also the appeal has to be, consequently, dismissed as time barred. There is, thus, no question of its-reaching the stage of Rule 11 or Rule 13. Although in practice where the consequential order is not passed it is the order rejecting the limit