The rejection of an application for condoning the delay in filing the appeal is a decision in the appeal, and therefore, the second appeal is maintainable.

RAN VIJAI SINGH, J.

The present second appeal has been filed by the defendant-appellants against the judgment and order dated 13. 8. 2008 passed by Additional District Judge, Court No. 8, District Mathura arising from Original Suit No. 174 of 2006 in between Munni Devi and another v. Smt. Premwati and another vide judgment and order dated 13. 8. 2008, appellants Appeal No. 176 of 2008 has been dismissed as barred by time.

2. The Stamp Reporter has reported that second appeal is not maintain able against the said judgment.

3. I have heard Sri R. K. Rathore, learned Counsel for the appellants.

4. Learned Counsel for the appellants has submitted before this Court that the report given by the Stamp Reporter is wrong and the second appeal is maintainable for the simple reason that dismissal of an appeal for the reason of delay in its presentation after disposal of an application for condo nation of delay is in substance and effect a confirmation of a decree appealed against, therefore, the second appeal lies. In support of his submissions, he has placed reliance upon the Full Bench decision of the Kerala High Court in Thambi v. Mathew and another, AIR 1988 Kerala 48 wherein it was held-

"in the present case, the appeal was dismissed as barred by limitation. That it was an appeal even though barred by time is clear from Mela Ram and Sons v. C. I. T. AIR 1956 SC 367 where Venkatarama Ayyar, J. , speaking for the Court, after referring to Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 PC 165 Raja Kulkarni v. State of Bombay AIR 1984 SC 73 and Promo Nath Roy v. N. A. Lee AIR 1921 Cat. 415 held that "an appeal presented out of time is an appeal, and an order dismissing it as time barred is

one passed in appeal. " There can be no dispute then that in law what the respondent did was to file an appeal and that the order dismissing it as time barred was one disposing of the appeal. "

5. That decision was based on the decision of the Supreme Court, reported in AIR 1982 SC 1397. In that decision, another Supreme Court decision was taken into consideration reported in AIR 1973 SC 2307. It was further held :-

"an appeal registered under Rule 9 of Order XLI, C. P. C. is to be dis posed of according to law and a dismissal of the appeal for the reason of delay in its presentation after the dismissal of an application for condona tion of delay is in substance and effect a confirmation of the decree ap pealed against. "

"i can see no reason for holding that there is a merger of replacement of judgment only in the first two cases and not in the last one. In my opinion, it makes no difference whether the dismissal is summary or otherwise and there is a judgment of the High Court in all the three cases".

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . it was further observed :-

"we are, therefore, of opinion that where a decision is given on the merits by the Trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of Trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits, whatever may be the ground for dismissal of the appeal.

Dismissal of an appeal on the ground of limitation was thus held as amounting to a confirmation of the decree of the Trial Court on the merits of the case and the decision of the Appellate Court is held to be res judicata on the question of title raised in the connected appeal. This decision of the Supreme Court would clearly indicate that the decree of the Trial Court gets merged in the Appellate Courts decree even when the appeal is dis missed on a preliminary ground or as time barred. "

6. Learned Counsel for the appellants submitted that second appeal lies because if the rejection of memo of appeal is an immediate consequence of the rejection of the application under section 5 of Limita

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