ORDER

1. This MCC has been filed for restoration of Second Appeal No.287/2013 which was dismissed as a consequence of dismissal of application for condonation of delay for want of prosecution, on 5.11.2014.

2. The necessary facts are that the appellant had suffered a decree on 18.4.2006 in Civil Appeal No.27-A/2005 by which the judgment and decree passed by Civil Judge Class-I, Dabra, District Gwalior on 29.1.2005 was affirmed. Thereafter the appellant filed an appeal with a delay of seven years along with an application for condonation of delay. On 5.1.2014, the Second Appeal No.287/2013 was listed for consideration of I.A.No.3351/2013. Since none appeared for the appellant despite call in the second round, therefore, the application was dismissed for want of prosecution after taking note of the fact that the appeal has been filed with the delay of more than seven years and as a consequence, the appeal was also dismissed. In the application for restoration of the appeal, the only reason which has been assigned by the applicant is as under :

3. That, the second appeal was listed on 5.11.2014 for hearing on I.A. No. 3351/2013 i.e., the Ramadhar Sharma v. State of M.P. & Ors. application filed under section 5 of the Limitation Act, 1963. The appellant did not approach the counsel's office and since there were no instructions from the appellant therefore the counsel did not appear before this Hon'ble Court.

4. Thus it is clear that even according to the applicant, the applicant himself was responsible for not giving any instructions to his counsel and accordingly, the counsel for the appellant did not appear when the case was called for consideration of application for condonation of delay.

5. One thing is clear that after dismissing the application filed under section 5 of the Limitation Act, the Court has also dismissed the appeal. The Supreme Court in the case of Shyam Sundar Sarma v. Pannalal Jaiswal and others reported in (2005) 1 SCC 436 has held as under :

8. The first question to be considered is whether an appeal accompanied by an application for condoning the delay in filing the appeal is an appeal in the eye of the law, when the application for condoning the delay in filing the appeal is dismissed and consequently the appeal is dismissed as being time-barred by limitation, in view of section 3 of the Limitation Act. There was conflict of views on this question before the High Courts. But the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey held: (AIR p. 167) “There is no definition of appeal in the Civil Procedure Code, but Their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent.”

8.1. These observations were referred to with approval by this Court in Raja Kulkarni v. State of Bombay.

9. The specific question involved came to be considered by this Court in Mela Ram and Sons v. CIT. This Court held that an appeal presented out of time is an appeal and an order dismissing it as time-barred is one passed in an appeal. This Court referred to and followed the view taken by the Privy Council and by this Court in the two respective decisions above-referred to. This Court quoted with approval the observations of Chagla, C.J. In K.K. Porbunderwalla v. CIT (ITR p. 66) to the following effect: (SCR p. 176)

“[A]lthough the Appellate Assistant Commissioner did not hear the appeal on merits and held that the appeal was barred by limitation his order was under section 31 and the effect of that order was to confirm the assessment which had been made by the Income Tax Officer.”

9.1. In Sheodan Singh v. Daryao Kunwar rendered by four learned Judges of this Court, one of the questions that arose was whether the dismissal of an appeal from a decree on the ground that the appeal was barred by limitation