RAJAN ROY,J. - (1.) This is a writ petition under Article 227 of the Constitution of India challenging an order dated 29.9.2018 passed by the IIIrd Addl. District and Sessions Judge/Raebareli in Misc. Case (Civil) No.R- 143 of 2011 dismissing the application of the petitioner under section 5 of the Limitation Act 1963 for extension of limitation and condonation of delay in filing the appeal under section 96 read with Order XLI of the Code of Civil Procedure 1908.
(2.) The preliminary point to be considered in this case is as to whether the remedy against such an order is by way of a petition under Article 227 of the Constitution of India or by way of a second appeal under section 100 C.P.C. This question has recently been considered and decided by this Court vide judgment dated 18.12.2019 passed in Writ Petition No. 25879 (MS) of 2019, Ram Prasad and ors. in the following terms : "Hon'ble Rajan Roy,J. By means of this petition under Article 227 of the Constitution of India the petitioner has challenged an order dated 24.4.2019 passed by the Additional District Judge (Court No.4)/Special Judge (E.C. Act), Sitapur, dismissing the application of the petitioner under section 5 of the Limitation Act 1963 (hereinafter referred as 'Act 1963') which was filed alongwith the appeal filed by the petitioners against the judgment and decree passed in O.S. No. 141 of 1999 allowing the suit of the private opposite parties herein. The application under section 5 was registered as Civil Misc. Case No.91 of 2014 and the same has been dismissed by the Appellate Court.
(3.) A question arose during the course of hearing as to the maintainability of this petition and whether a second appeal under section 100 C.P.C. would not lie against the impugned judgment ? In response, the learned counsel for the petitioner submitted that the order which has been impugned herein does not fall within the definition of decree under section 2(2) of the Code of Civil Procedure Code 1908, as it does not conclusively determine the rights of the parties with regard to all or any of the matters in controversy in the appeal arising out of the suit, instead it only rejects the application under section 5 of the Limitation Act 1963 which was registered as a separate miscellaneous case. As no decree of such an order is prepared, a second appeal under section 100 C.P.C. will not lie as it lies against appellate decrees.;