Janardan Sahai J. - (1.) The petitioner is a defendant in a suit which was decreed ex parte against him. He filed an application for setting aside the ex parte decree. As there was some delay in filing of the application he made an application for condoning the delay under Section 5 of the Indian Limitation Act. The delay condonation application was rejected by the trial court. The petitioner filed a revision against the order but subsequently made an application for converting the revision into an appeal. His application was rejected by the appellate court by its order dated 30.10.2006. The present writ petition is directed against this order.
(2.) There is no doubt that if a revision is filed against an appealable order the appellate court has ample power to grant permission to convert the revision into an appeal. This petition was originally allowed by this Court and it was held that the petitioner can be permitted to convert the revision into an appeal. On an application for recalling that order filed by respondent Nos. 2 to 4 the order earlier passed by this Court was set aside. The question which falls for consideration in this petition is whether the order dismissing the application under Section 5 of the Limitation Act is an appealable one. For if it is not so the order rejecting the application for conversion does not require to be interfered with in exercise of extraordinary jurisdiction under Article 226 of the Constitution.
(3.) Indisputably an order rejecting the application for setting aside an ex parte order is not a decree. However it is an appealable order under Order 43 Rule 1 (d) Civil Procedure Code But in this case the order challenged in revision was one by which the application under Section 5 of the Indian Limitation Act was rejected. Order 43 Rule 1 (d) provides for an appeal against an order under Rule 13ORDER9 rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte. If an application under Section 5 of the Indian Limitation Act is rejected the fate of the application under Order 9 Rule 13 Civil Procedure Code is sealed. The rejection of the application under Section 5 of the Indian Limitation Act is therefore tantamount to the rejection of the application under Order 9 Rule 13 Civil Procedure Code It would therefore follow that an appeal would lie under Order 43 Rule 1 (d) Civil Procedure Code against the order rejecting the delay condonation application. In Mamuda Khateen and Ors. v. Beniyan Bibi and Ors. (AIR 1976 Calcutta 415) a Full Bench of the Calcutta High Court held in paras 7 and 8 as follows: "7. It seems to us that when an appeal is barred by limitation and an application is made under Section 5 of the Limitation Act for condonation of the delay alongwith the memorandum of appeal until the application under Section 5 is allowed the appeal cannot be filed or admitted at all. In other words till a favourable order is made on the application under Section 5 the appeal is non est. In that event the question of rejecting a memorandum of appeal does not arise at all at this stage. 8. If the application under Section 5 be rejected the order rejecting the application cannot be a decree. And the order rejecting the memorandum of appeal is merely an incidental order.";