Neutral Citation No. - 2025:AHC:7923 Court No. - 9 Case :- MATTERS UNDER ARTICLE 227 No. - 15973 of 2024 Petitioner :- Ajay Kumar Mittal Respondent :- Bijendra Kumar And 3 Others Counsel for Petitioner :- Rahul Sahai Counsel for Respondent :- Nitin Kumar Agrawal Hon'ble Rohit Ranjan Agarwal,J. 1. The petitioner, before this Court, is aggrieved by order dated 30.09.2024 by which his application for condonation of delay filed under Section 5 of Indian Limitation Act in civil appeal has been dismissed. 2. When the matter was taken up on 20.12.2024, question of maintainability of writ petition under Article 227 of Constitution of India arose as against the dismissal of a civil appeal, a second appeal lies under Section 100 of CPC. 3. Counsel for petitioner submitted that the order on delay condonation application filed under Section 5 was passed by court below and no order was passed on the appeal and thus no decree was made by court below. Hence, the present writ petition has been preferred by petitioner. 4. This Court on 20.12.2024 through Registrar (Compliance) had required to seek instructions from District Judge, Ghaziabad as to whether any consequential order was passed after the rejection of Section 5 application by court concerned on the appeal preferred by petitioner. The District Judge, Ghaziabad on 06.01.2025 informed the Court through Registrar General of this Court that as the delay condonation application was registered as Misc. Case No. 12 of 2022, it was transferred to the court of Additional District and Sessions Judge/ FTC- I, Ghaziabad and the same was dismissed by judgment impugned. Thus, no question arose for passing any order on the appeal. This Court on 08.01.2025 required the District Judge, Ghaziabad to furnish the entire report as to the order passed on appeal which was accompanied by the application for condoning the delay under Section 5 of the Limitation Act and following order was passed:- "1. Pursuant to the order dated 20.12.2024, a report from the District Judge, Ghaziabad has been received which is on record. 2. From perusal of the report it transpires that entire report has not been given by the District Judge as only the mention of application moved under Section 5 of Limitation Act, which was dismissed, has been given but the consequential order passed on the appeal has not been mentioned in the report. 3. The District Judge, Ghaziabad to furnish further report in regard to order passed on the appeal pursuant to dismissal of application filed for condonation of delay under Section 5 of Limitation Act which was rejected on 30.09.2024. The District Judge shall indicate in his report as to whether any consequential order was passed on the civil appeal filed by the petitioner after his application for condonation of delay under Section 5 of Limitation Act was rejected. 4. The report shall be communicated by the District Judge, Ghaziabad through Registrar (Compliance) to this Court. 5. Put up as fresh on 17.01.2025." 5. The District Judge, Ghaziabad on 16.01.2025 furnished his fresh report through Registrar General of this Court wherein he intimated to the Court that in time barred civil appeal which is filed along with delay condonation application, the delay condonation application is registered and admitted as misc. petition. It is either heard by District Judge himself or is transferred to another court of Additional District Judge for its disposal as per the law. Whenever such delay condonation application is transferred to another court of Additional District Judge and if the concerned court condones the delay, then he forwards the said civil appeal before District Judge for its registration and admission. When records are placed before the District Judge, then the civil appeal is registered by office and is placed before the District Judge for its admission. After an order of admission is passed by District Judge, then civil appeal is allotted a number and accordingly it comes into existence. Vice-versa, if the delay condonation application is rejected, then it is consigned to records. Consequently, civil appeal which has been filed along with delay condonation application is not forwarded to District Judge for registration and hearing on the point of admission as it is not in existence, the said proposed civil appeal which is annexed with delay condonation application is also consigned to records along with it. 6. This Court finds that the explanation furnished by the District Judge is not in consonance with procedure laid down in dealing with civil appeal and the delay condonation application filed along with it. In case, delay condonation application under Section 5 of the Limitation Act filed along with a civil appeal is dismissed, consequential order of dismissal of civil appeal has to be passed when the file is consigned to records. Unless and until such consequential order is passed on the appeal, parties aggrieved by the said order would remain in limbo as to challenging the order in the superior court by filing a second appeal under Section 100 CPC. 7. In view of the said fact, the explanation furnished by District Judge, Ghaziabad on 16.01.2025 is untenable. The court below is hereby directed to pass consequential order of dismissal on the appeal and issue certified copy of the judgement as well as decree of the civil appeal so that the petitioner has the remedy of challenging the same before this Court by filing a second appeal under Section 100 CPC. The delay caused due to procedural lapse by court below shall not be counted towards the limitation period and the court below is hereby directed to pass necessary order and issue a copy of the judgment and decree to the petitioner, within three weeks. 8. With the aforesaid directions, the writ petition stands disposed of. Order Date :- 17.1.2025 V.S.Singh Digitally signed by :- VIDYA SAGAR SINGH High Court of Judicature at Allahabad