(1.) The facts necessary for deciding the controversy in this appeal are few and admitted. Indeed, the controversial question to be decided in this appeal is its maintainability. It is not disputed that when an appeal was filed by the defendants/appellants in the Court below, it was accompanied by an application under S.5 of the Limitation Act to conform with the statutory mandate of R.3A which was inserted in O.41 of the Code of Civil Procedure by the amending Act of 1976 with effect from 1-2-1977. The said appeal was filed on 20-2-1979 and on 5-4-1985 the impugned order was rendered in the appeal finally disposing of appellants application and while dismissing the same, directing further that a decree be prepared to the effect that the appeal was dismissed as time-barred. It is also not disputed that in fact, a decree was drawn and the same is filed in this Court with the impugned order along with the memorandum of appeal. The first question is whether the instant appeal of the defendants who were also appellants in the Court below, is at all maintainable.

(2.) Respondents counsel Shri Bharadwaj has cited decisions to establish his contention that the appeal is not maintainable. I propose, therefore, to look at those decisions first. The decision of this Court in Chhitu, AIR 1981 Madh Pra 13 in clear and categorical terms holds that R.3A(2) of O.41, C.P.C. puts an embargo in Courts power to proceed to do anything in the appeal unless the question of limitation is first decided and indeed, the appeal even cannot be heard on the question of admission itself. The view taken was that in such cases, there can be no appeal before the Court unless the delay is condoned. A Full Bench of Orissa High Court, in the case of Ainthu v. Sitaram, AIR 1984 Orissa 230 took the view that an order rejecting an appeal to following rejection of application for condonation of delay was not such an order as could be considered to be a decree within the meaning of S.2(2), C.P.C. and as such, the order was not appealable, but revisable. Their Lordships considered the import and purport of sub-rule (2) of R.3A in the context of sub-rule (3) as also sub-rule (1) thereof; as also of Rr. 9, 11 and 13 of O.41, to take the view that the Legislature made its will clear and explicit to make the provision positively mandatory that until delay in preferring the appeal was condoned, the appeal could not be dealt by the Court in any manner to decide any question in relation thereto. Thus, an order could not, therefore, be rendered under R.11 of O.41 finally adjudicating the dispute between the parties so as to touch the definition of decree. A Division Bench of Punjab and Haryana High Court in the case of Des Raj v. Om Prakash, AIR 1986 Punj and Har 3 took the same view relying albeit on the Orissa Full Bench case. The Full Bench of the Calcutta High Court in Mamuda Khateen, AIR 1976 Cal 415 [LQ/CalHC/1976/276] was, however, required to render a decision on the same question, without the aid of the newly inserted provision. In that case too, although R.3A had not come on Statute Book, the appellant who had filed the appeal in the Court below also filed with it an application under S.5 of the Limitation Act. Not only the application was rejected, the memorandum of appeal was also rejected, making it necessary for the appellant to challenge it in second appeal before the High Court. Their Lordships took the view that the order rejecting the memorandum of appeal was not a decree and second appeal, therefore, did not lie. It was held that till the favourable order was made in the application under S.5, the appeal was non est in law and the question of rejecting the memorandum of appeal did not at all arise. The order rejecting the memorandum of appeal, following rejection of application made under S.5, was merely an incident order, incidental to the rejection of the application.

(3.) Shri N.K. Jain, appearing for the appellants, has placed reliance on the decision in Sonba Keshao v. Rodrigues, AIR 1938 Nag 322, wherein the Court took the view that an order dismissing an appeal on the ground of limitation was decree within the meaning of S.2(2), C.P.C. and it was appealable. However, it must be noticed that the Court, in that case, was obviously not force of the newly inserted R.3A in O.41 as the same was on the Statute Book 40 years later. A decision of this Court in Munshi Singh v. Tularam, 1980 MPLJ (SN) 61 is also pressed in service by Shri Jain, but in this case also, the Court was not at all called upon to look at or apply the new provision and the decision was rendered merely on consideration of 5s.96 and 115, C.P.C. and S.5 of the Limitation Act.

(4.) It is no doubt true that S.96 contemplates that "an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court", but it must also be noticed that it is also contemplated therein that in the body of the Code itself, express provision to the contrary may be made. Further, it has to be noticed that the word "decree" is defined in S.2(2). The question would be whether any order of the Court which does not specify the test envisaged by the definition could at all be a decree even if it is so expressed by the Court in passing the order. Merely because there exists some order captioned as "decree", drawn up even in the form of decree, it would not make such an order a "decree", in my opinion, unless the order satisfies the requirement of S.2(2), C.P.C. This view of law finds support from the decisions to which I have earlier adverted. There is ample support for the proposition that when any order is made in a suit or appeal deciding only the question of limitation, such an order will not be a decree within the meaning of S.2(2) of C.P.C. because such an order does not result in conclusive determination of rights of the parties envisaged by S.2(2) with regard to "all or any of the matters in controversy in suit". Because, evidently, question of limitation does not and cannot touch the merit of the case set up by any party to the suit so as to be treated as a "matter in controversy in any suit". Bar of limitation is a threshold bar to be invoked even suo motu by a Court under S.3 of the Limitation Act as a result of which, for determination of "right of parties" agitated in the suit, there remains no scope when the bar operates. Indeed, a Division Bench of this Court in Bisandas, AIR 1959 Madh Pra 34 held that when a decree was passed ignoring stay order of superior Court, such a decree can have no legal existence and can provide no foundation for appeal because the stay order even if uncommunicated puts a bar on the jurisdiction of the concerned Court to proceed with the case.

(5.) In my opinion, neither any act of Court nor of parties would confer upon any order a statutory status affecting rights of parties in a manner which is not contemplated in law or which is positively violative of any statutory provision. Thus, by merely drawing up a decree, the Court cannot confer on parties right to file appeal in respect of decision rendered in the matter on the basis of the decree drawn up. Because, such act of subordinate Court shall be without jurisdiction and the appellate Court shall not be powerless to determine the effect and legality of such a decision for deciding its own jurisdictional competence to entertain appeal from such a decision. Indeed, in Panthanam, AIR 1942 Mad 73 [LQ/MadHC/1941/223] , it was held that right of appeal cannot be inferred by implication. When statutory entitlement is non-existent, no act of any Court embodying any order in the form of a decree can make even a final order of any Court appealable if the order was really, infact and law, not a decree. For this view, I also find sufficient support in the decision of their Lordships in Diwan Bros., AIR 1976 SC 1503 [LQ/SC/1976/230] wherein the question which squarely fell for their Lordships consideration was whether an order was a "decree" despite the term "decree" being used even in the statutory provision under consideration, namely, Displaced Persons (Debts Adjustment) Act, 1951. It was no doubt a question of court-fee which was required to be paid on the appeal preferred against the decision rendered by the Tribunal under the said Act, but for the reason that the impugned decision did not answer to the test laid down in S.2(2), C.P.C. the Court held that it could not be treated as a "decree" even though it was so described or named in the Act itself, though not defined. Their Lordships in Raja Kulkarni, AIR 1954 SC 73 [LQ/SC/1953/103] held that whether an appeal was valid or competent was a question which the appellate Court was competent to decide finally and the appeal could be found to be incompetent though a party was not prevented from filing such an appeal.

(6.) I have no doubt, therefore, that the fact that a decree was drawn up in this case and also the fact that in the impugned order itself, dismissing appellants application under S.5 of Limitation Act, there was a direction to this effect, would not make the instant appeal competent. I have also no doubt that R.3A has erected a positive bar disabling a Court to pass any order in any appeal filed before it without taking care to first decide finally the question of limitation, as to whether or not the appeal was time-barred. Thus, when the Court proceeds to pass an order of stay in violation of the mandate of sub-rule (3) of R.3A, as done in the instant case, or proceeds to hear the matter under R.11, the subsequent proceeding and the order passed finally in the appeal itself, in my opinion, would be entirely without jurisdiction and non est in law. No decree on the basis of such an order can be drawn up and even if drawn up shall be treated likewise to be non est in law. Legislature meant to take away expressly the right of appeal against an order passed under R.3A of O.41 rejecting the application made under sub-rule (1) thereof, holding the appeal time-barred, by enacting the provision and mandating that the question of limitation "shall be finally decided by the Court before it proceeds to deal with the appeal under R.11 or R.13, as the case may be". No appeal in such a case is contemplated evidently to contravene the provisions of S.96 itself which postulates negation of right to appeal even from a decree, when so provided in the Code. Therefore, according to me, by following a procedure contrary to law, in express violation of the legal mandate, the order passed and indeed the decree drawn up pursuant thereto, in the instant case, would not confer any right on any party to file or prosecute an appeal from such an order or decree.

(7.) For all the foregoing reasons, I have no hesitation to hold at once that the instant appeal is not maintainable, but the question still would be whether I cannot treat the appeal as an application under Art.227 to correct the jurisdictional error of the Court below. For this, I do not have to travel far to decide the question because I have already taken the view in Anwar v. Wahidan, (C. R.No. 924 of 1983, decided on 17-71986)* that this Courts duty it is to act under Art.227 to correct jurisdictional error of the subordinate Court when such Court passes any order, lacking in inherent jurisdictional competence. In the instant case, I have no doubt at all that the Court below, in passing the impugned order, has violated the express statutory mandate of R.3A. That order, or even the decree drawn up by it, must be treated as non est in law. Indeed, the grievance against the order, on merits, is that the application made under sub-rule (1) of R.3A of O.41 was not properly disposed of inasmuch as the medical certificate, on which the explanation for delay in filing the appeal was grounded, was ignored arbitrarily. This grievance affects lower appellate Courts jurisdictional competence and merits my interference under Art.227 of the Constitution with the impugned order.

(8.) In the result, I hold that the instant appeal is not maintainable, but I further hold that this is a fit case in which I should exercise my jurisdiction under Art.227 to set at naught the extra-jurisdictional exercise undertaken by the Court below in rendering the impugned order. Accordingly, the impugned order, and also the decree relating thereto, passed by the Court below, are set aside. The matter is remitted to the lower appellate Court with the direction that the application filed along with the memo of appeal under sub-rule (1) of R.3A of O.41 (for condonation of delay under S.5 of the Limitation Act) shall be reheard on merits and final decision thereon shall be rendered in accordance with law and further order as respects the appeal may be passed thereafter as provided by law. Counsel agree to appear in the Court below on 24-9-1986 to take a date of hearing of the matter thereat. It shall be the duty of the Court below to ensure expeditious disposal of the matter and I direct that after hearing counsel, the matter shall be finally disposed of within a month thereafter. Order accordingly.