JUDGMENT
Janardan Sahai, J.
1. The petitioner is a defendant in a suit which was decreed ex parte against him. He filed an application for setting aside the ex parte decree. As there was some delay in filing of the application, he made an application for condoning the delay under Section 5 of the Indian Limitation Act. The delay condonation application was rejected by the trial court. The petitioner filed a revision against the order but subsequently made an application for converting the revision into an appeal. His application was rejected by the appellate court by its order dated 30.10.2006. The present writ petition is directed against this order.
2. There is no doubt that if a revision is filed against an appealable order, the appellate court has ample power to grant permission to convert the revision into an appeal. This petition was originally allowed by this Court and it was held that the petitioner can be permitted to convert the revision into an appeal. On an application for recalling that order filed by respondent Nos. 2 to 4, the order earlier passed by this Court was set aside. The question which falls for consideration in this petition is whether the order dismissing the application under Section 5 of the Limitation Act is an appealable one. For if it is not so, the order rejecting the application for conversion does not require to be interfered with in exercise of extraordinary jurisdiction under Article 226 of the Constitution.
3. Indisputably an order rejecting the application for setting aside an ex parte order is not a decree. However, it is an appealable order under Order XLIII, Rule 1 (d) C.P.C. But in this case the order challenged in revision was one by which the application under Section 5 of the Indian Limitation Act was rejected. Order XLIII, Rule 1 (d) provides for an appeal against 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. If an application under Section 5 of the Indian Limitation Act is rejected the fate of the application under Order IX, Rule 13, C.P.C. is sealed. The rejection of the application under Section 5 of the Indian Limitation Act is therefore, tantamount to the rejection of the application under Order IX, Rule 13, C.P.C. It would therefore, follow that an appeal would lie under Order XLIII, Rule 1 (d), C.P.C. against the order rejecting the delay condonation application. In Mamuda Khateen and Ors. v. Beniyan Bibi and Ors. , a Full Bench of the Calcutta High Court held in paras 7 and 8 as follows:
7. It seems to us that when an appeal is barred by limitation and an application is made under Section 5 of the Limitation Act for condonation of the delay alongwith the memorandum of appeal, until the application under Section 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 rejecting the memorandum of appeal is merely an incidental order.
4. The same view was followed by a Full Bench of Orissa High Court in Ainthu Charon Panda v. Sitaram Jayanarayan Firm and Anr. . The Apex Court in Ratan Singh v. Vijay Singh , approved the reasoning of the Full Bench of Calcutta High Court in Mamuda Khateen (supra), that when an appeal is barred by limitation, the appeal cannot be admitted at all until the application under Section 5 of the Indian 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 and the order rejecting the memorandum of appeal in such circumstances is merely an incidental order and is not a decree. It thus appears that the order impugned in the revision rejecting the application under Section 5 of the Limitation Act had sealed the fate of the application under Order IX, Rule 13, C.P.C. The order that would subsequently have to be passed dismissing the application under Order IX, Rule 13, C.P.C. would be a mere consequential and incidental order. The order rejecting the application under Section 5 is the main order in such a case and the rejection of the application under Section 5 of the Limitation Act tantamounts to the rejection of the application under Order IX, Rule 13, C.P.C. The order was therefore, appealable under Order XLIII, Rule 1 (d), C.P.C.
5. In Essar Constructions v. N.P. Rama Krishna Reddy , it was held by the Apex Court that rejection of an application to set aside an arbitration award on the ground that there was no sufficient explanation for the delay would give rise to an appealabe order under Section 39 (1) (vi) of the Arbitration Act as it is the application for setting aside the award whether on merits or on the ground of limitation which has been rejected. No doubt in Essar Constructions’ case the Apex Court was dealing with a case where the application for setting aside the award itself had been rejected though on the ground of delay.
6. No distinction can however be drawn with a case where the application under Section 5 of the Limitation Act is rejected without there being any formal order dismissing the application for setting aside the award itself inasmuch as after the rejection of the delay condonation application the fate of the application for setting aside the award is a foregone conclusion and the order that would follow would be merely an incidental one. The decision of the Full Bench of the Calcutta High Court in Mamuda Khateen’s case and that of the Apex Court in Ratan Singh’s case would be applicable.
7. It has been held in Bahori v. Vidya Ram , that the Court has discretion to permit conversion of a revision into an appeal in exercise of inherent power under Section 151, C.P.C. The same view has been taken in Kuldeep Chand v. Shiv Ram .
8. In view of the aforesaid decisions the court below ought to have allowed the application for conversion of the revision into an appeal. The order of the appellate court dated 30.10.2006 is therefore, set aside. The application for conversion of the revision into an appeal is allowed.
Petition is allowed.
