( 1 ) THE facts necessary for deciding the controversy in this appeal are few and admitted. Indeed, the controversial question to be decided in this appeal is its maintainability. It is not disputed that when an appeal was filed by the defendants/appellants in the Court below, it was accompanied by an application under S. 5 of the Limitation Act to conform with the statutory mandate of R. 3a which was inserted in O. 41 of the Code of Civil Procedure by the amending Act of 1976 with effect from 1-2-1977. The said appeal was filed on 20-2-1979 and on 5-4-1985 the impugned order was rendered in the appeal finally disposing of appellants' application and while dismissing the same, directing further that a decree be prepared to the effect that the appeal was dismissed as time-barred. It is also not disputed that in fact, a decree was drawn and the same is filed in this Court with the impugned order along with the memorandum of appeal. The first question is whether the instant appeal of the defendants who were also appellants in the Court below, is at all maintainable.

( 2 ) RESPONDENT's counsel Shri Bharadwaj has cited decisions to establish his contention that the appeal