K.R.MOHAPATRA,J. - (1.) The appellant in this appeal assails the order dated 03.05.2019 passed by the learned District Judge, Mayurbhanj at Baripada in R.F.A. No.41 of 2016, whereby he dismissed the appeal on the ground of limitation.
(2.) The appellant framed the following questions for consideration: "(i) Whether the learned Lower Appellate Court was correct in disbelieving the illness of the appellant because there was no scrap of paper showing the regular check up of the patient by the Doctor. (ii) Whether the learned Lower Appellate Court was correct in not treating the illness and medical certificate of the appellant is sufficient cause when the factum of sufficient cause has not definite meaning but the subjective satisfaction by court. (iii) Whether the learned Lower Appellate Court was correct in dismissing the regular first appeal on the ground of limitation when it should be heard on merit."
(3.) At the outset, the position of law should be clarified with regard to maintainability of appeal under Section 100 of Code of Civil Procedure, 1908 (for short, 'the Code') against an order dismissing the appeal filed under Section 96 of the Code as a consequence of rejection of a petition for condonation of delay in filing the said appeal. 3.1 The Full Bench of this Court in the case of Ainthu Charan Parida - v- Sitaram Jayanarayan Firm, represented by Ramnibas and another , 1984 1 OrissaLR 819 held as under: " 31. For the reasons recorded by R.C. Patnaik, J. in the order of reference and in view of what has been stated above, we hold that an order rejecting a memorandum of appeal or dismissing an appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure. The Civil Revision may now be placed before our learned brother R.C. Patnaik, J. for a decision." 3.2 However, Hon'ble Apex Court in the case of Shyam Sundar Sarma v. Pannalal Jaiswal and Others , 2005 AIR(SC) 226 held as under: "10. The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi v. Mathew , 1987 2 KerLT 848 (FB) . Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of the law for all purposes and an order dismissing the appeal was a decree that could be the subject of a second appeal. It was also held that Rule 3-A of Order 41 introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal registered under Rule 9 of Order 41 of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal. 11. Learned counsel for the appellant relied on the Full Bench decision of the Calcutta High Court in Mamuda Khateen v. Beniyan Bibi , 1976 AIR(Cal) 415 [81 CWN 111 (FB)] to contend that an order rejecting a time-barred memorandum of appeal consequent upon refusal to condone the delay in filing that appeal was neither a decree nor an appealable order. On going through the said decision it is seen that though the Full Bench referred to the divergent views on that question in the Calcutta High Court prior to the rendering of the decision of this Court in Mela Ram and Sons , 1956 SCR 166 [AIR 1956 SC 367] it had not considered the decisions of this Court in Raja Kulkarni , 1954 SCR 384 [1954 Cri LJ 351] and in Mela Ram and Sons , 1956 SCR 166 [AIR 1956 SC 367] in coming to that conclusion. In fact it is seen that there was no discussion on that aspect as such, though there was a reference to the conflict of views in the decisions earlier rendered by the Calcutta High Court. Since the ratio of that decision runs counter to the principle laid down by this Court in Mela Ram and Sons , 1956 SCR 166 [ AIR 1956 SC 367] obviously the same could not be accepted as laying down a correct law." 3.3 In the case of Chandrakant Somnath Melge v. Balasaheb Somnath Melge,2017 SCCOnLineBom 8471, the High Court of Bombay at paragraph-8 held as follows: "8. What is relevant for the purposes of section 100 of the Code of Civil Procedure is that, there must be a decree passed by the first Appellate Court. A decree means a formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The matter in controversy in the appeal between the parties was as to the entitlement of the Appellant herein to challenge the ex parte decree passed against him by the trial Court. That matter is conclusively determined and the right of the Appellant with regard to the same is conclusively denied, when in the appeal an order was passed on the application for condonation of delay, rejecting the same, and thereby dismissing the appeal. Just because there is no formal merger between the appellate order and the decree passed by the trial Court in the sense of the doctrine of merger implied by law, it cannot be said that there is no decree of the Appellate Court. Since in this case, the appeal is dismissed on the ground that delay is not condoned, the order passed by the Appellate Court is nevertheless a decree and a second appeal from such decree would certainly lie under section 100 of the Code if it does give rise to a substantial question of law." ;