Honble Janardan Sahai, J.—The petitioner is a defendant in a suit which was decreed exparte against him. He filed an application for setting aside the exparte decree. As there was some delay in filing of the application, he made an application for condoning the delay under Section 5 of the Indian Limitation Act. The delay condonation application was rejected by the Trial Court. The petitioner filed a revision against the order but subsequently made an application for converting the revision into an appeal. His application was rejected by the appellate Court by its order dated 30.10.2006. The present writ petition is directed against this order.

2. There is no doubt that if a revision is filed against an appealable order, the appellate Court has ample power to grant permission to convert the revision into an appeal. This petition was originally allowed by this Court and it was held that the petitioner can be permitted to convert the revision into an appeal. On an application for recalling that order filed by respondents No. 2 to 4, the order earlier passed by this Court was set aside. The question which falls for consideration in this petition is whether the order dismissing the application under Section 5 of the Limitation Act is an appealable one. For if it is not so, the order rejecting the application for conversion does not require to be interfered with in exercise of extra ordinary jurisdiction under Article 226 of the Constitution.

3. Indisputably an order rejecting the application for setting aside an exparte order is not a decree. However, it is an appealable order under Order 43 Rule 1 (d) CPC. But in this case the order challenged in revision was one by which the application under Section 5 of the Indian Limitation Act was rejected. Order 43 Rule 1 (d) provides for an appeal against an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed exparte. If an application under Section 5 of the Indian Limitation Act is rejected the fate of the application under Order 9 Rule 13 CPC is sealed. The rejection of the application under Section 5 of the Indian Limitation Act is therefore tantamount to the rejection of the application under Order 9 Rule 13 CPC. It would therefore follow that an appeal would lie under Order 43 Rule 1 (d) CPC against the order rejecting the delay condonation application. In Mamuda Khateen and others v. Beniyan Bibi and others, AIR 1976 Cal 415, a Full Bench of the Calcutta High Court held in paras 7 and 8 as follows :

"7. It seems to us that when an appeal is barred by limitation and an application is made under Section 5 of the Limitation Act for condonation of the delay along with the memorandum of appeal, until the application under Section 5 is allowed the appeal cannot be filed, or admitted at all. In other words, till a favourable order is made on the application under Section 5 the appeal is non est. In that event, the question of rejecting a memorandum of appeal does not arise at all at this stage.

8. If the application under Section 5 be rejected the order rejecting the application cannot be a decree. And the order rejecting the memorandum of appeal is merely an incidental order."

4. The same view was followed by a Full Bench of Orissa High Court in Ainthu Charan Parida v. Sitaram Jayanarayan Firm and another, AIR 1984 Orissa 230. The Apex Court in Ratan Singh v. Vijay Singh, AIR 2001 SC 2491, approved the reasoning of the Full Bench of Calcutta High Court in Mamuda Khateen (supra) that when an appal is barred by limitation, the appeal cannot be admitted at all until the application under Section 5 of the Indian Limitation Act is allowed and until then the appeal petition even if filed, will remain in limbo. If the application is dismissed the appeal petition becomes otiose and the order rejecting the memorandum of appeal in such circumstances is merely an incidental order and is not a decree. It thus appears that t