Is an order rejecting a memorandum of appeal as barred by limitation, a decree?

Question: Is an order rejecting a memorandum of appeal as barred by limitation, a decree?

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Answer

In the case of Des Raj v. Om Parkash And Anr. AIR 1986 P H 3, the question that arises for determination in the appeal is, whether the order dismissing an appeal after the dismissal of an application under section 5 of the Limitation Act is a decree with the meaning of section 2(2) of the CPC.

The court held that where an order is passed rejecting a memorandum of appeal as barred by limitation, it is not a decree but merely an order. If Legislature had intended that an order rejecting a memorandum of appeal should be included in the decree, it would have been so easy for the Legislature to make appropriate additions in the definition of the decree itself.

It seems to us that it would not be open to the Court to add to this definition any other kinds of adjudications however similar they may appear to be, to the adjudications which are expressly included in the definition.

The same view was expressed by the Karnataka High Court in Commissioner, Hubli-Dharwad Municipal Corporation v. Sri Shail. AIR 2004 Kar 75 (Full Bench). Hence, the rejection of a memorandum of appeal as being out of time does amount to a decree and is appealable.

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