SL. No Date Office Notes, reports, orders or proceedings or directions and Registrar’s order with Signatures COURT’S OR JUDGES’S ORDERS WPMS 1997/2023 Hon’ble Manoj Kumar Tiwari, J. Mr. Harsh Vardhan Dhanik, Advocate, for the petitioner. Mr. Nikhil Singhal, Advocate, for the respondent no. 1. (2) Petitioner has challenged order dated 31.5.2023, passed by 5th Additional District Judge, Haridwar in Miscellaneous Case No. 192 of 2022. By the said order, petitioner’s application for condonation of delay in filing regular first appeal under Section 96 CPC was rejected on the ground that sufficient cause has not been shown for condoning the delay of 346 days. (3) Mr. Nikhil Singhal, learned Counsel appearing for the respondent no. 1, has referred to a judgment of Hon’ble Supreme Court, rendered in the case of Shyam Sundar Sarma v. Pannalal Jaiswal, reported in (2005) 1 SCC 436. Para 11 and 12 of the said judgment are reproduced below: “1. Learned counsel for the appellant relied on the Full Bench decision of the Calcutta High Court in Mamuda Khateen v. Beniyan Bibi 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 it had not considered the decisions of this Court in Raja Kulkarni and in Mela Ram and Sons 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 obviously the same could not be accepted as laying down a correct law. 12. Learned counsel placed reliance on the decision in Ratansingh v. Vijaysingh rendered by two learned Judges of this Court and pointed out that it was held therein that dismissal of an application for condonation of delay would not amount to a decree and, therefore, dismissal of an appeal as time-barred was also not a decree. That decision was rendered in the context of Article 136 of the Limitation Act, 1963 and in the light of the departure made from the previous position obtaining under Article 182 of the Limitation Act, 1908. But we must point out with respect that the decisions of this Court in Mela Ram and Sons and Sheodan Singh were not brought to the notice of Their Lordships. The principle laid down by a three-Judge Bench of this Court in Mela Ram and Sons and that stated in Sheodan Singh was, thus, not noticed and the view expressed by the two- Judge Bench, cannot be accepted as laying down the correct law on the question. Of course, Their Lordships have stated that they were 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 definition of a decree obtaining in the Code. Thereafter, noticing the decision of the Calcutta High Court above-referred to, Their Lordships in conclusion apparently agree with the decision of the Calcutta High Court. Though the decision of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey was referred to, it was not applied on the ground that it was based on Article 182 of the Limitation Act, 1908, and there was a departure in the legal position in view of Article 136 of the Limitation Act, 1963. But with respect, we must point out that the decision really conflicts with the ratio of the decisions in Mela Ram and Sons and Sheodan Singh and another decision of this Court rendered by two learned Judges in Rani Choudhury v. Lt.-Col. Suraj Jit Choudhury . In Essar Constructions v. N.P. Rama Krishna Reddy brought to our notice, two other learned Judges of this Court left open the question. Hence, reliance placed on that decision is of no avail to the appellant.” (4) Mr. Singhal has also referred to a judgment rendered by a learned Single Judge of Allahabad High Court in the case of Smt. Geeta Bala Goyal & another v. Kailash Chandra (Dead) & others, reported as 2008 SCC OnLine All 1171. Para 15 of the said judgment is reproduced below: “In view of the aforesaid decisions of the Supreme Court and the Full Bench of the Kerala High Court which has also been approved by the Supreme Court in Shyam Sunder’s case (supra), this Court holds that the order rejecting an application under section 5 of the Limitation Act or an application under Order XLI, Rule 3-A of the C.P.C. is in fact an order on an appeal, and therefore appealable under section 100 of the C.P.C.” (5) Since the order rejecting the delay condonation application in an appeal, filed under Section 96 CPC, is appealable under Section 100 CPC, therefore, this Court declines to entertain this writ petition. Writ petition is, accordingly, dismissed. However, petitioner shall be at liberty to file an appeal under Section 100 CPC, against the order impugned in this writ petition, if so advised. Petitioner shall be at liberty to seek benefit of Section 13 of Limitation Act before the second appellate court. (Manoj Kumar Tiwari, J.) 27.2.2025 Pr