A second appeal is not competent when the lower appellate court has dismissed the appellant's application for condonation of delay and dismissed the appeal as time-barred.

( 1 ) A learned single Judge of this Court has referred the following question of law for opinion of this Bench :"whether the present appeal, as a second appeal lies to the High Court or not, in the particular circumstances of the case as set out in paras 6 and 7 above. "

( 2 ) IN view of the terms of reference, it has become necessary for us to quote also paras 6 and 7 of the order of reference :"6. Now, in the present appeal the facts are: the learned appellate Judge dismissed the appellants' application, purporting to be under O. 41, R. 3a, C. P. Code read with Sec. 5 of the Limitation Act and then made the following observations in the ordersheet :- "since the appeal by the order of I. A. No. 2, has been held to have been filed after prescribed period of limitation, the same is also dismissed automatically. 7. No decree was ordered to be drawn up and when the appellant made an application for drawing up of a decree the Court rejected the application after observing that there was no necessity for framing a decree. "

( 3 ) WHAT is also stated in the order makes it clear that the learned single Judge had made the reference for the reason expressed precisely in para 5 that there were two views of Single Benches of this Court which were of conflicting nature and it was not possible to reconcile them. He considered the decisions cited at the Bar in support of the two views, one propounded in the case of Balkishan v. Tulsabai, AIR 1987 Madh Pra 120 and the other, in a short-noted decision of this Court in Munsisingh v. Tularam, 1980 2 MPWN 128 mainly, besides other decisions of this Court noted in the order. Munshisingh (supra), it was noted, found support in Panditram v. Atmaram, 1961 Jab LJ (SN) 199 and Lalitlal, Purohit v. Ghanshyam, 1965 0 MPLJ 98 and the decision in Sonba Keshao v. Rodrigues, AIR 1938 Nag 322. Balkishan (supra) had the support of the decision of another Single Bench of this court in the case of Chhitu v. Mathuralal, AIR 1981 Madh Pra 13. It was also noted that in support of the view in Balkishan and Chhitu, decisions of other Courts were cited, viz. , Deshraj v. Om Prakash AIR 1986 Punj and Har 3 and the Full Bench decision in the case of Mamuda Khatin, AIR 1976 Cal 415.

( 4 ) TRUE, Munshisingh (1980-2 MPWN 128) (supra) was cited before the Bench deciding Balkishan ( AIR 1987 Madh Pra 120) (supra); but it was distinguished. We propose to look first, therefore, at Munshisingh. Indeed, there is little to be read in the short-note except to observe that the view of the learned single Judge in that case was founded on the premise that a decree had been drawn up when the application under S. 5 of the Limitation Act for condonation of delay in filing the appeal was rejected and the appeal was dismissed as time-barred. What else can be read is only that the learned single Judge relied on a decision of Tripura Judicial Commissioner's Court in the case of Mangal Ballav v. Smt. Nihar, AIR 1959 Tripura 6 for the view expressed, referring also to the decision in the cases of Banwarilal v. Neelakantham, AIR 1965 Orissa 102 and Bhagirathi Padhan v. Achuta Padhan, AIR 1965 Orissa 193; while distinguishing the decisions reported in 1979 Jab LJ (SN) 41, Lakhan v. Laxminath and in AIR 1979 Raj 76, Hajari Ram v. Mantri Khadi Mandir.

( 5 ) LET it, however, be made clear that in Munshisingh (1980-2 MPWN 128) (supra), Civil Revision was filed and that was held not maintainable on the ground that the order challenged was an appealable order and, as earlier observed, for the sole reason that a decree had been drawn up. There was no occasion for the Court to consider at all the effect and implications of R. 3a inserted in O. 41 by C. P. C. Amendment Act, 1976, w. e. from 1-2-1977. That is what appears clearly on the face of the order reproduced in the concerned law report. In the Tripura decision relied on, there was obviously no occasion in 1959 to refer to or consider new R. 3a. In that case, it was held that order