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TMI Blog1976 (8) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... isting of Mr. Justice A, C. Gupta and Mr. Justice S. C. Deb for a decision on the following question: Is an order rejecting the memorandum of appeal following the rejection of application under Section 5 of the Limitation Act for condonation of the delay in filing the appeal a decree ? 2. In the instant case, the proposed appeal to the first appellate Court, namely, the Court of the District Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court held that an order by an appellate Court rejecting an appeal before it has been admitted, on the ground that it was presented out of time, is a decree within the meaning of the definition of Sub-section (2) of Section 2 of the Code of Civil Procedure. 5. A contrary view was taken by another Division Bench. In Jnanadasundari Shaha v. Madhabchandra Mala, (ILR 59 Cal 388 = (AIR 1932 Cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 5 is allowed the appeal cannot be filed or admitted at all. In other words, till a favourable order is made on the application under Section 5 the appeal is non est. In that event, the question of rejecting a memorandum of appeal does not arise at all at this stage. 8. If the application under Section 5 be rejected the order rejecting the application cannot be a decree. And the order rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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