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<h1>Court clarifies rejection of appeal memo post delay condonation denial not a decree; filing hinges on condonation.</h1> The court determined that an order rejecting the memorandum of appeal after the rejection of an application for condonation of delay under Section 5 of ... - Issues:Determining whether an order rejecting the memorandum of appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of the delay in filing the appeal constitutes a decree.Analysis:The case was referred to a larger Bench to decide whether an order rejecting the memorandum of appeal after the rejection of the application under Section 5 of the Limitation Act for condonation of delay in filing the appeal qualifies as a decree. The Court noted conflicting decisions within the Calcutta High Court on this matter. One view, as expressed in Sudhansu Bhusan Pandey v. Majhe Bibi, considered such an order as a decree. On the other hand, in Jnanadasundari Shaha v. Madhabchandra Mala, it was held that such an order was not a decree. The Court also referred to the decision in Rakhal Chandra Ghosh v. Ashutosh Ghosh, where an order rejecting an appeal before admission due to being out of time was considered a decree.The Court analyzed the situation where an appeal is time-barred, and an application under Section 5 of the Limitation Act is filed for condonation of delay along with the memorandum of appeal. Until the Section 5 application is allowed, the appeal cannot be filed or admitted. Therefore, the rejection of the memorandum of appeal does not arise until a decision is made on the Section 5 application. If the application under Section 5 is rejected, the order rejecting it cannot be a decree, and the rejection of the memorandum of appeal is considered an incidental order.The Court concluded that an order rejecting the memorandum of appeal following the rejection of an application under Section 5 of the Limitation Act is not a decree. It stated that an application in revision under Section 115 of the Code may be filed against such an order, but no appeal under Order 43, Rule 1 of the Code can be preferred. The appeal in the present case was dismissed, with no order as to costs, and the appellants were granted liberty to proceed with an application under Section 115 of the Code, if desired.In a separate opinion, Justice Sabyasachi Mukharji and Justice Salil Kumar Datta agreed with the Chief Justice's judgment, leading to the dismissal of the appeal.
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