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Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter.
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AI Drafter - (New and Powerful) ✕ Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter.
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Issues: Whether dismissal of a second appeal as barred by time, following rejection of the application for condonation of delay, amounts to a decree so as to affect the commencement of limitation for execution of the decree.
Analysis: Under the Code of Civil Procedure, a decree requires a conclusive adjudication determining the rights of parties in the suit. Rejection of an application for condonation of delay does not determine the merits of the appeal and the resultant dismissal of the memorandum of appeal as time barred is only incidental. Where the appellate court does not pass a decree on merits, the decree of the lower appellate court remains unaffected. Under Article 136 of the Limitation Act, 1963, limitation for execution begins when the decree becomes enforceable, and an appellate decree supersedes the trial court decree only if a decree is actually passed in appeal. The earlier position under Article 182 of the Limitation Act, 1908, and Section 48 of the Code of Civil Procedure, 1908, was materially different and did not govern the present regime.
Conclusion: Dismissal of the second appeal as time barred did not amount to a decree and did not postpone the starting point of limitation for execution. The execution was barred as it was initiated more than 12 years after the first appellate decree became enforceable.
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