An order rejecting a memorandum of appeal or dismissing an appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring an appeal is not a decree.

BEHERA, J.

( 1 ) IN this revision directed against the order passed by the additional District Judge, Keonjhar, refusing to condone the delay in preferring a Money Appeal presented under Order 41, Rule 1 of the Code of Civil Procedure, 1908 (for short, the 'code') and rejecting the memorandum of appeal, the question referred by our learned brother R. C. Patnaik, J. for a decision is as to whether an order rejecting a memorandum of appeal or dismissing an appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring an appeal is a decree. If it is, an appeal is competent and if it is not, a revision may lie. The reference has been made because of conflicting decisions of some High Courts including this Court.

( 2 ) THE operative part of the impugned order passed by the learned Additional District Judge in the Money Appeal reads :

"in view of the discussion as made above, I do not find any sufficient ground to condone the delay in filing the appeal and the appeal is barred by limitation. Hence the appeal memo is rejected. "

No order of dismissal of the appeal has been passed and no decree has been drawn up.

( 3 ) IN ILR (1962) Cuttack 818 Achyula Khangadamajhi v. Sibram Khangadamajhi G. K. Misra, J. (as he then was) held, dissenting from the view taken by the Patna High Court in AIR 1920 Patna 818 Farzand Ali v. Abdul Hamid and relying on the observations of Gajendragadkar, J. (as he then was) speaking for the Court in AIR 1954 Bom 43. Phaltan Bank v. Baburao, that the decision of the court rejecting a memorandum of appeal or dismissing an appeal on the ground of limitation was not a decree. This was reiterated by the same learned Judge in AIR, 1964 Orissa 86 Rajkishore Sahu v. Pushraj Sagarmal. The same question was considered by a Division Bench of this Court in AIR 1905 Orissa 102 Banwarilal Bhoid v. P. Neelakanthan. The Bench consisting of R. L. Narasimham, C J. and R. K. Das, J. (as he then was) took into consideration a number of reported cases of different High Courts and mainly relying on the case of Rakhal v. Ashutosh (1913) 17 Cal WN 807, overruled the single Judge decision in ILR (1962) Cuttack 818 (supra) and held that the dismissal of an appeal as 'barred' by limitation would amount to a decree wherefrom an appeal would lie. R. C. Patnaik. J. , has noticed that the decision reported in 17 Cal WN 807 (supra) has been overruled by a Full Bench of the Calcutta High Court in the case of Mamuda Khateen v. Beniyan Bibi AIR 1976 Cal 415 and referring to the recent amendments made 10 the Code by the Civil Procedure Code (Amendment) Act, 1976 (for short, the "amendment Act') and in particular, the addition of Rule 3-A to Order 41, has recorded his view thus :

"in my humble opinion, rejection of an application for condonation of delay may have shut the doors of the appellate court; but the refusal of admittance does not amount to conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. There is no scope for determination of the rights of the parties until condonation of delay and the appeal is admitted for registration. Section 5 of the Limitation Act, therefore, categorically says that no appeal shall be admitted until satisfactory cause is shown for the delay. In the scheme of Order 41, the stage is not reached at the juncture of Rule 3a for the conclusive determination of the rights of the parties. The rights mean substantive rights with regard to all or any of the matters in controversy in the suit. May be the effect of the rejection of the application for condonation of delay would be that the decision of the court below is not liable to be interfered with in appeal but that is a different matter. If after rejection of the application for condonation of delay, the court passes an order dismissing the appeal and draws up a decree in consonance therewith, these are all incidental matters and in my