Point of Law : It is only after that application is allowed, appeal can be entertained and heard on merits.

ORDER :

RAJESH BINDAL, CJ.

1. On a reference made by learned Single Judge for consideration of the issue, as extracted below, the matter has been placed before the Division Bench:

"If an order has been challenged before the consolidation authority is barred by the period of limitation as provided under the statute (in the present case before the appellate authority/Settlement Officer Consolidation -1, Hardoi) along with an application for condonation of delay then in that circumstances whether the application for condonation of delay under Section 5 of the Limitation Act should be decided first or the same can been decided along with merit of the case?"

2. The issue was referred to Larger Bench for the reason that there are two divergent views given by Single Benches of this Court in Consolidation No. 604 of 2014 (Dev Narain Singh Vs. Dy. Director of Consolidation, Sultanpur & others) decided on September 5, 2014 and Girja Shanker and others Vs. Deputy Director of Consolidation and others 1996 RD 465.

3. In Dev Narain Singh's case (supra) the view expressed by learned Single Judge of this Court was that it is not mandatory for the appellate authority to decide the application for condonation of delay first and then hear the appeal on merits. On the other hand, in Girja Shanker's case (supra), a single Judge of this Court opined that an order passed by appellate authority condoning the delay in filing the appeal is not an interlocutory order, hence, revision under Section 48 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as “1953 Act”) is maintainable against that order. It was, thus, observed that it is mandatory for the appellate authority to decide the application seeking condonation of delay first and then fix a later date to hear the appeal on merits, so as not to deprive the party aggrieved, if any, of his right to avail the remedy admissible to him against the order passed on the application filed under Section 5 of the Limitation Act, 1963 (hereinafter referred to as “1963 Act”).

4. Learned counsel for the petitioner submitted that Section 11 of 1953 Act provides for filing of appeals against the order passed by Assistant Consolidation Officer or the Consolidation Officer. The period prescribed for filing the appeal is 21 days from the date of the order. Sub-section (2) thereof provides that Settlement Officer (Consolidation) hearing an appeal under Sub-section (1) shall be deemed to be a Court. Section 53-B of the 1953 Act was referred to submit that Section 5 of the 1963 Act is applicable for applications, appeals, revisions and other proceedings under the 1953 Act. Reference is also made to Section 48 of the 1953 Act to submit that the Director Consolidation may call for and examine the records of any case decided or proceedings taken by the subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings.

5. The argument raised by learned counsel for the petitioner is that if any appeal is filed after the period prescribed in Section 11 of the 1953 Act along with an application seeking condonation of delay, the application seeking condonation of delay has to be decided first and, thereafter, the appeal has to be adjourned for hearing on merits. It cannot be simultaneous. If a party is aggrieved by an order passed by appellate authority on an application seeking condonation of delay, he may be able to avail of his remedy during the interregnum period. Such a process has to be followed as no one should be deprived of his right of appeal available to him against an order passed by appellate authority on the application seeking condonation of delay. An order passed by appellate authority under Section 5 of 1963 Act is a final order and cannot be considered to be an interim order, hence, revisable.

6. Learned counsel for the State submitted that a bare reading of the provisions of the 1953 Act specially Section 11 read with Section 53-B thereof shows that an appeal is to