The refusal to condone a 16-day delay in appeal due to medical incapacity was deemed perverse, affirming the right to a first appeal.

JUDGMENT (Oral)

1. This appeal, under Section 100 of the Code of Civil Procedure, 1908 (CPC) arises out of RCA 49/2018, which was dismissed by the learned Additional District Judge, ("the learned ADJ") vide the impugned judgment dated 9th April, 2019, on the ground of delay, by dismissing the application preferred by the appellant for condonation of delay in filing the appeal.

2. That a second appeal, under Section 100 of the CPC, does lie against a first appellate order, which dismisses an application for condonation of delay and consequently rejects the first appeal as time barred, stands authoritatively decided by a Full Bench of the High Court of Madhya Pradesh in Maniram v. Mst. Fuleshwar, 1996 MP LJ 764 (FB), which follows the decisions of the Supreme Court in Melaram v. Income Tax Commissioner, AIR 1956 SC 367; Raja Kulkarni v. State of Bombay, AIR 1954 SC 73 and Rani Chaudhary v. Lt. Col. Suraj Jit Chaudhary, AIR 1982 SC 1397. Paras 8, 16, 17, 18 and 19 to 21 of the report in Maniram (supra) are reproduced thus:

"8. The basic point that, therefore, arises for consideration is as to what is the effect of dismissal of an appeal consequent to dismissal of an application under section 5 of the Limitation Act and/or an application under Order 41, Rule 3A of the Civil Procedure Code and whether the order dismissing the appeal in the above manner would amount to a decree in which there is merger of a decree of the trial Court and, therefore, an appeal under section 100, Civil Procedure Code would be competent?

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16. In Melaram & Sons v. Income Tax Commissioner (supra), the Supreme Court while interpreting the provisions of sections 31 and 33 of the Income Tax Act held after considering various decisions:

"On the principles laid down in these decisions, it must be held that an appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal."

In the above case, the observations in Nagendra Nath v. Suresh Chandra, AIR 1932 PC 165, have been quoted regarding the construction of the word "appeal" as below:

"There is no definition of appeal in the Code of Civil Procedure, 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."

Thus, even if an appeal is presented beyond the period of limitation and may, therefore, be held to be incompetent, still it is an appeal and an order of dismissal of such an appeal as time-barred is one passed in appeal.

17. In Raja Kulkarni v. State of Bombay (supra), it has been laid down that:

"Whether the appeal is valid or competent is a question entirely for the Appellate Court before whom the appeal is filed to determine and this determination is possible only after the appeal is heard, but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent, e.g., when it is held to be barred by limitation or that it does not lie before that Court or is concluded by a finding of fact under section 100 Civil Procedure Code. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the Court."

18. In Rani Chaudhary v. Lt. Col. Suraj Jit Chaudhary (supra), Melaram's case (supra) was followed and it was observed:

`In the present case, the appeal was dismissed as barred by limitation' That it was an appeal even though barred by t