APHC010565152024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3330] WEDNESDAY, THE TWELFTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO CIVIL REVISION PETITION No. 310/2025 BETWEEN: Ari Suryanarayana Rao ...PETITIONER AND Mannam Nagendramma ...RESPONDENT Counsel for the Petitioner: 1. J M NAIDU Counsel for the Respondent: 1.-- The Court made the following: 2 THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO CIVIL REVISION PETITION No.310 of 2025 ORDER: The respondent/plaintiff filed suit in O.S.No.141 of 2001 on the file of the learned Principal Junior Civil Judge, Addanki, against the petitioner/defendant for recovery of an amount of Rs.50,000/- basing on the promissory note, dated 19.05.1998. Despite service of summon personally through Court, the defendant was called absent and he was set ex parte on 19.07.2001. Thereby, considering the evidence adduced by the respondent/plaintiff, the said suit was decreed on 30.07.2001 in favour of the respondent/plaintiff against the petitioner/ defendant and ordered to pay an amount of Rs.68,000/- with subsequent interest and costs. 2. I.A.No.156 of 2010 in O.S.No.141 of 2001 was filed under Section 5 of the Limitation Act by the petitioner herein to condone the delay of 2988 days in filing application under Order IX Rule 9 CPC. The said application was dismissed by the learned Judge of the trial Court vide order, dated 07.05.2018. Aggrieved by the same, the petitioner herein filed C.M.A.No.3 of 2018 on the file of the learned Civil Judge (Senior Division), Addanki and the said CMA was dismissed vide order, dated 19.09.2024. Assailing the same, the present civil revision petition is filed. 3. Approximately after expiry of eight years of disposal of the suit, the petitioner/defendant filed I.A.No.156 of 2010 to condone the delay of 2988 days in filing an application under Order IX Rule 9 of CPC to 3 set aside the ex parte order on the ground the suit summons were not served on the petitioner/defendant on 19.07.2001. The learned trial Court Judge has dismissed the I.A. No.156 of 2010 postulating that petitioner/defendant took false plea in the application and the suit summons were served on 19.07.2001 and the petitioner/defendant failed to file medical record that he suffered ill-health at relevant point of time to condone the delay of 2958 days. 4. Assailing the order dated 07.05.2018 in I.A. No.156/2010 in O.S. No.141/2001 on the file of the Junior Civil Judge, Addanki, petitioner/defendant in the suit filed C.M.A. No.3 of 2018 on the file of Civil Judge (Senior Division) Addanki u/s 104 r/w Order 43 Rule 1 C.P.C. 5. The learned lower appellate Court Civil Judge (Senior Division), Addanki, has dismissed the C.M.A. vide order dated 19.09.2024 with the same observations as the Judge of the trial Court. 6. Assailing the order in C.M.A. No.3 of 2018 the present Civil Revision Petition is filed under Article 227 of Constitution of India on several grounds. The question for consideration is whether an order dismissing the application filed under Section 5 of the Limitation Act for condoning the delay in filing to set aside an order under Rule 9 of Order IX to set aside the dismissal of suit, is an appealable order within the meaning of Section 104 r/w Order 43 rule 1 of the Code of Civil Procedure. 4 Under Section 104 read with Order 43 Rule 1 expressly authorises and creates a forum for appeal against order falling under the various clauses of Order 43 Rule 1 CPC which reads thus :- "An appeal shall lie from the following orders under the Provisions of Section 104, namely :-- (c) an order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (d) an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte." 8. In Ratansingh v. Vijaysingh1 the supreme court held that : A decree is defined in Section 2(2) of the CPC as under: Decree means the formal expression of an 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 in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Sec. 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final." 9. In order that decision of a court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in 1 (2001) 1 SCC 469 5 the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time barred is also not a decree. We are aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the meaning of the said definition. We are also aware of the contrary decisions rendered by High Courts on the same point. Dealing with some of those decisions a Full Bench of the Calcutta High Court [S.P. Mitra, CJ, Sabyasachi Mukherjee, J (as he then was) and S.K. Datta, J] has held in Mamuda Khateen and ors. vs. Beniyan Bibi and ors. (AIR 1976 Calcutta 415) that if the application under Section 5 of the Limitation Act was rejected the resultant order cannot be decreed and the order rejecting the memorandum of appeal is merely an incidental order. The reasoning of the Full Bench was that when an appeal is barred by limitation the appeal cannot be admitted at all until the application under section 5 of the Limitation Act is allowed and until then the appeal petition, even if filed, will remain in limbo. If the application is dismissed the appeal petition becomes otiose. The order rejecting the memorandum of appeal in such circumstances is merely an incidental order. We have no doubt that the decisions rendered by the High Court holding the contrary view do not lay down the correct principle of law. 10. The order under challenge under section 5 of the limitation act is not a decree as it does not conclusively determined the rights of the parties would not amount to a decree as defined under section 2 (2) CPC hence the lower appellate court cannot entertain the appeal under Order 43 rule 1 CPC. Ergo 6 the lower appellate court has no jurisdiction to adjudicate the order in I.A. No 156 of 2010 in O.S. N0: 141 of 2001 on the file of Junior Judge (Civil Division). 11. However, even on merits the lower appellate Court has rightly dismissed the C.M.A on the ground that the petitioner has not explained such huge delay of 2988 days by assigning any valid reason. Hence, this Court is not inclined to interfere with the impugned order, dated 19.09.2024 passed in C.M.A.No.19.09.2024 on the file of the learned Civil Judge (Senior Division), Addanki and the revision petition is liable to be dismissed. 12. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions pending, if any, shall stand closed. ___________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date : 12.03.2025 SPP 7 THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO CIVIL REVISION PETITION NO. 310 of 2025 Date : 12.03.2025 SPP