Goutam Bhaduri, J.

Heard on admission.

2. The instant appeal is against the order dated 08.07.2015 passed by the Court of Additional District Judge (FTC), Rajnandgaon District Rajnandgaon against the judgment and decree dated 19.11.2019 passed in Civil Suit No. 7-A/2006 by the Civil Judge, Class-I, Ambagarh Chowki, Chhattisgarh.

3. The first appellate Court by order dated 08.07.2015 decided an application under Order 41, Rule 3(a) of the Code of Civil Procedure wherein the appellate Court dismissed the first appeal as barred by time and refused to condone the delay. The instant appeal was also filed with a delay of 98 days and an application for condonation of delay has been filed for condoning the delay in filing the appeal.

4. Since there was delay in filing the appeal, notices were issued to respondent No. 1 and after issuance of notice respondents entered appearance.

5. The primary submission made by learned counsel for the respondent No. 1 is that the second appeal not lie since the first appeal was not decided on merits, as such, it was contended that the appeal be dismissed as not maintainable at the threshold and the appellants may take recourse to the other remedy available and not by way of second appeal.

6. Thus the entire question revolves around the issue as to whether the second appeal is maintainable if the application for condonation of delay has been dismissed in first appeal and consequently the first appeal also stands dismissed ? Since there were divergent views in different case laws, as such, Ms. Sharmila Singhai, Advocate, was appointed as Amicus Curiae to assist the Court to ascertain as to whether or not the second appeal is maintainable ?

7. The learned Amicus Curiae Ms. Sharmila Singhai as also counsel for the appellants Mr. Aditya Bharadwaj went through various case laws and submit that the second appeal be maintainable even if the first appeal is dismissed on the ground of limitation whereas Mr. Parag Kotecha counsel appearing for the respondent submit that the second appeal is not maintainable at the threshold and the appellant has other efficacious remedy available except the second appeal.

8. Tracing the history of cases of like nature, If we refer to the decision reported in 1956 SC 367, M/s Mela Ram & Sons v. Commissioner of Income Tax, Punjab reported with reference to Income Tax Act wherein the appeal was filed beyond the period of limitation, it indicate that right of appeal is substantive right and the creature of the statute. In the said case, it was further held that the 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. In the said case, following the principle laid down in AIR 1932 PC 165, Nagendranath v. Suresh Chandra while construing the word, 'appeal' in the third column of Article 182, it was interpreted 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." Therefore it was concluded that an appeal presented out of time is an appeal and an order dismissing it as time-barred is one passed in appeal.

9. Further in case of Sheodan Singh v. Daryao Kunwar, AIR 1966 S.C. 1332 the question arose whether dismissal of appeal from a decree on a ground that the appeal was barred by limitation whether is a decision in appeal. The Court held that "we are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing it must be held that such dismissal when it confirms the decision of the trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal.

10. Similar question a