An order dismissing an appeal as time-barred is not a decree within the meaning of Section 2(2) of the Civil Procedure Code, 1908, and therefore, an appeal against such an order is not maintainable.

Gopal Lal Gupta, J.-This second appeal has been directed against the decree/order/Judgment dated 10-10-1995 passed by the learned Additional District Judge, Sojat dismissing the appellant’s first appeal on the ground that it was barred by time.

2. Respondent Manak had filed a suit for permanent injunction in respect of plot of land situate in village Gin. Defendant-appellant in his reply claimed that the suit land was in his possession. The trial Court framed three issues. After recording evidence and hearing the parties the trial Court decreed the suit on 26-8-1994 holding that the suit land belonged to the plaintiff and it was in his possession. The defendant preferred appeal before Additional District Judge on 19-10-1994. The office reported that the appeal was time-barred. The appeal was, however, admitted subject to objection of limitation. Thereafter, vide impugned order the learned Additional Dist. Judge held that the appeal was time-barred. He, therefore, dismissed the application under Section 5 of the Limitation Act and also the appeal. Hence, this second appeal.

3. A preliminary objection was raised on behalf of the respondent that this appeal is not maintainable. It was contended that the impugned order/decree does not satisfy the requirement of Section 2(2) of the CPC as the order has not conferred any statutory status affecting the rights of the parties and, therefore, it cannot be

called a decree. My attention has been invited to Sub-rule (3-A) of Rule 41, CPC which erects a positive bar to pass any order in appeal filed without first deciding the question of limitation.

4. Learned Counsel for the appellant on the other hand contended that since decree has been prepared this appeal is maintainable.

.5. In my considered opinion, the preliminary objection must prevail. Section 100 of CPC provides that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court. The word ‘decree’ has been defined in Section 2(2), CPC which is reproduced hereunder:-

.(2) “decree” means the formal expression Of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-

.(a) any adjudication from which an appeal lies as an appeal from an order, or

.(b) any order of dismissal for default.

.6. It is evident from a bare reading of the definition that, ‘decree’ has the following essential elements:-

.(i) There should be an adjudication.

.(ii) The adjudication should determine the rights of parties regarding the matter in controversy.

.(iii) The adjudication should be in a suit and the adjudication should be formal and conclusive so far as that Court is concerned. In the definition, some orders which otherwise do not constitute decree are also included and certain orders which constitute decree have been excluded from it.

.7. Thequestion would be whether an order of the Court which does not satisfy the test envisaged by the definition could at all be a decree even if it is so expressed by the Court in passing the order. In my opinion merely because there exists some order captioned as decree, drawn up even in the form of decree, it would not make such an order a ‘decree’ unless the order satisfies the requirement of Section 2(2), CPC There is ample support for the proposition that when any order decides only the question of limitation such an order will not be a ‘decree’ within the meaning of Section 2(2), CPC because such an order does not result in conclusive determination of the rights of the parties envisaged by Section 2(2) with regard to all or any matter in controversy in a suit. Because, evidently the question of limitation does not and cannot touch the merits of the case s