Decided on June 05,1958

Mangal Ballav Roaza Appellant
Smt. Nihar Prava Mutsuddi And Others Respondents


J.N. Datta, J.C. - (1.)THIS revision petition is directed against the order of the learned District Judge in Civil Appeal No. 115 of 1957 dated 9 -11 -57, by which he refused to extend time under S. 5 of the Indian Limitation Act and dismissed the appeal as time barred.
(2.)THE first question to be settled is whether a revision or an appeal lies against such an order, The learned Counsel for the petitioner contended that what he wanted to be set aside was the order refusing to extend time, but in my opinion that is not open to him in view of the fact that the appeal has also been finally disposed of as far as the first appellate Court was concerned, and it is that dismissal which must be set aside if the petitioner is to get any relief.
Such a dismissal of an appeal as time barred is undoubtedly a "decree" as defined in S. 2(2) of the C.P. Code. The view also finds support from Keshomal v. Panchulal,, AIR 1953 Ajmer 32 (A). It must therefore be found that the present revision petition is not competent and what is competent is an appeal.

In this view of the matter I would have permitted the petitioner to convert this revision petition into a memorandum of appeal, but there also there is an obstacle which cannot be surmounted because the learned District Judge did not draw up a decree dismissing the appeal as time barred, and until that is done the petitioner cannot have the right to prefer an appeal.

(3.)THAT question was examined in detail in a Full Bench case of the Nagpur High Court (Baliram Ganpatrao v. Manohar Damodhar,, AIR 3943 Nag 204 (B)) and the learned Judges decided that in no case, can a party come up in appeal unless a formal decree is drawn up and signed, and if the Court refuses to draw up a decree on an application made by the petitioner aggrieved, the matter could be set right in revision. I must concur and with great respect with those observations. In view of the definition of "decree" given in the Code, and the provisions of Ss. 96 and 100 it is not possible to accept any other contention. No useful purpose can, therefore, be served by allowing this revision petition to be converted into a memorandum of appeal, and the only remedy of the petitioner is to approach the first appellate Court with an application that a decree be drawn up. He can then only come up in appeal before this Court.

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