An order dismissing an appeal after dismissal of an application under Section 5 of the Limitation Act is not a decree within the meaning of Section 2(2) of the Civil Procedure Code.

RAJENDRA NATH MITTAL, J.

1. The question that arises for determination in the appeal is, whether the order dismissing an appeal after dismissal of an application under S.5 of the Limitation Act is a decree with the meaning of S.2(2) of the Civil P.C.

2. Briefly the facts are that the plaintiff instituted a suit for possession of the land in dispute on the ground that he had been dispossessed forcibly by the defendants. The suit was contested by the defendants who controverted the allegation of the plaintiff, and pleaded that they were in its possession with the consent of the plaintiff.

3. The trial Court accepted the plea of the defendants and held that they were in possession of the land with the consent of the plaintiff. Consequently it dismissed the suit. The plaintiff filed an appeal before the Senior Sub Judge after the expiry of the period of Limitation on 8th April, 1974. Later, on 2nd April, 1976 he filed an application under S. 5 of the Limitation Act for condoning the delay in filing the appeal. It was dismissed on the ground that there was no sufficient cause to condone the delay. In view of the dismissal of the application the appeal was dismissed by the Court as barred by time. The plaintiff came up in second appeal to this Court which was listed before me. An objection was taken by the counsel for the respondents that no appeal was maintainable against the impugned order as it was not a decree. Both the parties referred to a number of judgments of the various High Courts in which different views had been expressed. Consequently I referred the appeal for decision to a larger Bench. That is how the matter is before us.

4. In order to decide the question it will "be necessary to read the definition of the word "decree" as given in S.2(2) of the Code which is as follows :

"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 S.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 or default.

Explanation - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

It is evident from a bare reading of the definition that a decree has the following essential elements :

(i) There should be an adjudication;

(ii) the adjudication should determine the rights of the parties regarding all or any of the matters in controversy;

(iii) the adjudication should be in a suit; and

(iv) the adjudication should be formal and conclusive so far as that Court is concerned.

It is further evident that some orders which otherwise do not constitute decrees are included in the definition and certain orders which constitute decrees are excluded from it. The former category includes the orders of rejection of the plaint and determination of any question within S.144 of the Code.

5. In the present case, as already stated, the appeal has not been decided on merits but dismissed on the ground of limitation. The learned counsel for the appellant argues that the order of rejection of a plaint on the ground of limitation under O.7, R.11 read with S.2(2) of the Code amounts to decree. He further argues that if R.11 of O.7 is read with S.107(2), the order of rejection of memorandum of appeal will also amount to a decree.

6. We have duly considered the argument but we do not find substance in it. It is true that the rejection of a plaint on the ground of limitation is a decree and that S.107(2) of the Code provides that the Appellate Court has the same powers and performs the same duties as are