A. K. SEN, B. C. CHAKRABARTI ( 1 ) THIS appeal directed against an appellate decision and a revisional application in the alternative have been heard together. It will be necessary to refer to the material facts in the background to appreciate the real dispute between the parties as raised in this appeal and the application in the alternative and decide the same. ( 2 ) THE first respondent, Tridib Nath Sanyal, was an employee of the appellant, Oil and Natural Gas Commission, a body corporate under the Oil and Natural Gas Commission Act, 1959 (hereinafter referred to as the 'said act' ). The said respondent (hereinafter referred to as the plaintiff) instituted Title Suit No. 17 of 1971 in the First Court of the learned Subordinate Judge, Alipore for a declaration that an order dated January 4, 1971 passed on behalf of the commission under regulation 14 (5) of the Leave Regulation 1968 directing the plaintiff to be deemed to have resigned from his appointment and, as such, no longer in service, is bad, illegal, ultra vires and that the plaintiff is still continuing in service and is entitled to salary since July 9, 1970. In this suit, the present appellant was the first defendant (hereinafter referred to as the defendant) and two of the officers or the appellant, namely, Senior Deputy Manager, Port Canning Project, Oil and Natural Gas Commission and General Manager, Eastern Region, Oil and Natural Gas Commission, were the defendants Nos. 2 and 3. This suit was contested by all the three defendants including the present appellant by filing written statement. It is not in dispute that in entering appearance, the appellant did so through an advocate Shri Raghu Nath Chatterjee, in whose favour a Vakalatnama was executed by the then Chairman of the Commission. The plaintiff succeeded at the trial and the suit was decreed on contest by the learned Subordinate Judge by the judgment and decree dated May 31, 1979. ( 3 ) FEELING aggrieved the defendant (the present appellant before us) preferred an appeal being Title Appeal No. 731 of 1979 before the Court of appeal below. The plaintiff succeeded at the trial and the suit was decreed on contest by the learned Subordinate Judge by the judgment and decree dated May 31, 1979. ( 3 ) FEELING aggrieved the defendant (the present appellant before us) preferred an appeal being Title Appeal No. 731 of 1979 before the Court of appeal below. There is no dispute again that the Memorandum in the said appeal was presented on behalf of the defendant by Shri Raghu Nath Chatterjee, the same advocate though in so doing he purported to act on a fresh Vakalatnama, annexed to the Memorandum which was executed in his favour by one Anil Kumar Chakraborti, a Deputy Director of the Commission on behalf of the defendant-appellant. In that appeal the defendant-appellant filed an application for stay and the notice of that application being served on the plaintiff-respondent (hereinafter referred to as the plaintiff), he raised a dispute at the hearing of the stay application that the appeal as presented was not maintainable in law, in view of the fact that the memorandum had been presented by Sri Raghunath Chatterjee, on the authority of an invalid power because Anil Kumar Chakraborti, the Deputy Director of the Commission was not authorized to execute the Vakalatnama on behalf of the Commission. The learned Judge of the court of appeal below in granting the stay so prayed for did not decide the said dispute but reserved the same for consideration at the time of hearing of the appeal by observing, "the question is whether the Vakalatmama is a defective one and, if so whether the said defect can be removed, is a question which, if agitated, will be considered in due course. For the purpose of the instant application, the Court will proceed on the assumption that there is a Vakalatnama before this Court. " ( 4 ) IMMEDIATELY, following the said order on November 13, 1979, the defendant-appellant appreciating the position that Anil Kumar Chakrabarti, the Deputy Director of the Commission had not the delegated authority to execute the Vakalatnama on behalf of the Commission, filed a fresh Vakalatnama duly executed by a competent authority in favour of the said learned advocate, viz. , Sri Raghunath Chatterjee along with an application. , Sri Raghunath Chatterjee along with an application. In this application, the defendant pleaded that Sri Raghunath Chatterjee having been duly empowered by a Vakalatnama, executed by the Chairman of the Commission at the trial of the suit was entitled in law to file the appeal in view of the provisions of Sub-Rule (2) of Rule 4 of Order 3 of the Code of Civil Procedure so that even if the Vakalatnama that was annexed to the Memorandum of Appeal be found to be invalid not being executed by a person duly authorized in that behalf, that would not invalidate the presentation of the appeal. As a measure of abundant caution, the defendant made an alternative prayer that the fresh Vakalatnama filed along with the application may be accepted in support of the Memorandum in the event it be decided that Shri Chatterjee had not the authority to present the Memorandum at the time when it was so presented. This application was not disposed of and obviously was held back for consideration at the time of hearing of the appeal in view of the earlier direction by the court that the material issue would be decided later in course of hearing of the appeal. ( 5 ) IN that background when the appeal came up for hearing before the learned Additional District Judge, Seventh Court, Alipore, he decided to consider the point of maintainability before entering into the merits of the appeal. Hearing the parties on that point, the learned Additional district Judge accepted the plaintiff-respondent's contention that the appeal is incompetent as the Memorandum was presented by an advocate who was not duly authorized to do so at the time of its presentation and in that view he passed the following order -"in view of my discussion above, I find that the appeal is incompetent end is not maintainable. I, accordingly, dismiss the appeal. Hence, ordered that the appeal be and the same is rejected on contest against respondent Nos. 1 and 3 and exparte against the rest as the same is not maintainable. " ( 6 ) FEELING aggrieved, the defendant has preferred the present Second Appeal with an alternative application under section 115 of the Code of Civil Procedure challenging the aforesaid order of the learned Additional District Judge. 1 and 3 and exparte against the rest as the same is not maintainable. " ( 6 ) FEELING aggrieved, the defendant has preferred the present Second Appeal with an alternative application under section 115 of the Code of Civil Procedure challenging the aforesaid order of the learned Additional District Judge. The appeal is being contested by the plaintiff-respondent both on merits as also on a preliminary objection that a Second Appeal to this Court is not maintainable in law. Since there is an application in revision in the alternative, we will consider the preliminary objection raised on behalf of the plaintiff-respondent only after we consider the points on the merits raised before us. ( 7 ) PERUSAL of the judgment of the learned Judge in the court of appeal below goes to show that the defendant-appellant never disputed the fact that Anil Kumar Charkraborti, the Deputy Director was not authorized to execute the Vakalatnama on behalf of the defendant-appellant as he did, which was filed along with Memorandum of Appeal. But it was strongly contended that the said very learned advocate being also authorized by the Chairman at the trial and that authority not having lapsed on the disposal of the suit, it was competent for him to file the Memorandum. Reliance was placed on the entry No. 30 (a) of the schedule of delegated powers of delegated under section 26 of the said Act, which reads as follows : Sl. No. Nature of Power Authority Extent of Power. 30. a. Power to appoint attorneys, soli- 1. Member citors, advocates, counsels for 2. Chief of Division Rs. 5000/- in and on behalf, or the Commi- 3. Head of Department each case ssion to appear, act, plead and 4. Legal Advisor conduct all cases or suits in 5. Manager of Project. Rs. 500/- in courts (revenue, civil or criminal) 6. Sr. Deputy Manager in each case. Charge of Project. and to make payments therefore. In support of the said contention reliance was also placed on the provision of Order 3, Rule 4 Sub-Rule (2) of the Code with its Explanation. Manager of Project. Rs. 500/- in courts (revenue, civil or criminal) 6. Sr. Deputy Manager in each case. Charge of Project. and to make payments therefore. In support of the said contention reliance was also placed on the provision of Order 3, Rule 4 Sub-Rule (2) of the Code with its Explanation. The defendant-appellant took the stand that the power that was executed in favour of the learned advocate at the trial would continue to remain a valid authority for the purpose of presenting the present appeal since the appeal is continuance of the proceeding in the suit for the purpose of Order 3, Rule 4 (2) of the Code. ( 8 ) SUCH a plea was overruled by the learned Judge in the court of appeal below on two-fold reasons assigned by him : firstly he held that he Chairman is not one of the six authorities specified in item 30 (a) of the Schedule of Delegated Powers, and as such, was not himself authorized to appoint and authorize an advocate on behalf of the Commission and that being so the Vakalatnama executed by the Chairman at the trial was of no avail; secondly he held that he Memorandum of Appeal having been presented on a fresh Vakalatnama and the defendant-appellant having filed an application on November 13, 1979, along with a new Vakalatnamqa executed by the legal adviser praying for accepting the same in the alternative, the defendant-appellant could not fall back upon power executed at the trial by the Chairman in favour of the learned advocate to support the competency of the appeal. In that view the learned Judge held that the Memorandum of Appeal had not been presented in the manner prescribed by the Code and, as such, is not maintainable. Obviously, he was in two minds not knowing what would be the result of such a finding made by him, namely, whether the memorandum should be rejected or the appeal should be dismissed as a result whereof he passed an order dismissing the appeal and at the same time rejecting the same. ( 9 ) MR. Bose, appearing in support of the appeal and the revisional application has strongly contended that the view taken by the court of appeal below is apparently erroneous and neither of the two reasons assigned by the said court in support of its view is sustainable in law. ( 9 ) MR. Bose, appearing in support of the appeal and the revisional application has strongly contended that the view taken by the court of appeal below is apparently erroneous and neither of the two reasons assigned by the said court in support of its view is sustainable in law. According to Mr. Bose the court of appeal below clearly misread the said Act as also the statutory delegation made thereunder in thinking that the Chairman does not come within any of the six authorities specified in item 30 (a) of the Schedule of delegated powers. The said court failed to take note of the fact that section 2 (e) of the Act defines 'member' to include the Chairman. Our attention has also been drawn to the delegation of powers made under section 26 which itself under the Heading "categories of Authorities Exercising Delegated Powers" specifies that a 'member of the Commission' is to include the Chairman also. In view of the aforesaid definition clause and the clarification made in the Delegation itself it has been contended by Mr. Bose that the learned Judge in the Court of appeal below went wrong in thinking that when in Item No. 30 (a) power to appoint an advocate has been delegated to a member that term 'member' would not include the 'chairman'. So far as the other reason given by the learned Judge of the court of appeal below is concerned it has been contended by Mr. Bose that the mere fact that the defendant had given a fresh power in favour of the same advocate which, admittedly, is an incompetent power that by itself does not terminate the authority of the learned advocate under the original power validity executed in his favour. Strong reliance is placed by Mr. Bose on the provision of Order 3, Rule 4 (2) and according him, the learned Judge failed to appreciate the true legal position in view of the aforesaid provision of the Code in holding otherwise. Mr. Strong reliance is placed by Mr. Bose on the provision of Order 3, Rule 4 (2) and according him, the learned Judge failed to appreciate the true legal position in view of the aforesaid provision of the Code in holding otherwise. Mr. Bose has next contended that even assuming that Shri Raghunath Chatterjee did present the Memorandum of Appeal on June 21, 1971, without the requisite authority obtained from the defendant to do so that was a mere defect in the procedure which could very well be removed by a subsequent authorization as was proposed by the defendant on the prayer made in their application dated November 13, 1979. This aspect was not considered by the Court of Appeal below at all when he rejected the Memorandum on the ground of a technical defect pointed out by him. These are the points which have been raised before us by Mr. Bose in support of the merits of the appellant's claim in the appeal and in the revisional application in the alternative. ( 10 ) MR. Motilal appearing on behalf of the plaintiff has contested all the points thus raised by Mr. Bose. According to Mr. Motilal, the court of appeal below had correctly read the Delegation of Powers in holding that under item 30 (a) of the Schedule of Delegated Powers the Chairman was not authorized to execute a power and appoint an advocate. According to him, the term 'member' in that entry must necessarily mean in the context a member other than the Chairman. Strong reliance is placed by Mr. Motilal on a subsequent delegation made on July 9, 1974, in favour of the Chairman in contending with reference thereto that such a specific authorization by necessary implication establishes the fact that previously there was no authority gives to the Chairman by virtue of the delegation as in Item No. 30 (a) of the Schedule of Delegated Powers. Mr. Motilal has also contended that even if reliance be placed on the Vakalatnama so executed by the Chairman that was not one executed on behalf of the commission but was one executed on his own behalf. Therefore, it cannot be said that by virtue of that authority, Sri Chatterjee was competent to file any appeal on behalf of the defendant Commission. Moreover, according to Mr. Therefore, it cannot be said that by virtue of that authority, Sri Chatterjee was competent to file any appeal on behalf of the defendant Commission. Moreover, according to Mr. Motilal when the appeal before the lower appellate court was presented on the authority of a fresh Vakalatnama executed in favour of Sri Raghunath Chatterjee and when Sri Chatterjee fought out the interlocutory proceeding on the authority of the said power, the defendant cannot fall back upon the original Vakalatnama filed at the trial and rely upon the same in support of their Memorandum of Appeal. So far as the third point raised by Mr. Bose is concerned, according to Mr. Motilal the application dated November 13, 1979, for acceptance of a fresh Vakalatnama executed by the legal adviser was not really pressed by the defendant before the lower appellate court and, as such, the defendant cannot now turn back and argue that he learned judge in the court of appeal below should have accepted the power so filed for removal of the technical defect. According to Mr. Motilal such a power could not have been accepted for the simple reason that it was filed long beyond the period of limitation for the preferring of the appeal and in the absence of any application under section 5 of the Limitation Act for condonation of the delay such a power could not be accepted by the lower appellate court in support of a Memorandum which was not presented competently on the date it was so presented. ( 11 ) WE have carefully considered the rival contentions put forward before us and no such careful consideration we feel no hesitation in holding that there is ample substance in the contentions raised by Mr. Bose. It appears to us that the learned Judge in the court of appeal below clearly misread the legal position and, in particular, the statutory delegation in holding that the appeal preferred before him was not preferred on any valid authority from the defendant and as such was not maintainable. Bose. It appears to us that the learned Judge in the court of appeal below clearly misread the legal position and, in particular, the statutory delegation in holding that the appeal preferred before him was not preferred on any valid authority from the defendant and as such was not maintainable. It is not disputed before us, as it was not disputed before the court of appeal below, that the Vakalatnama that was filed along with the Memorandum of Appeal was not executed by one having any authority to do so on behalf of the defendant Commission and, as such, the said Vakalatnama conferred no authority on Shri Raghunath Chatterjee to file the memorandum on behalf of the defendant. But the fact remains that the said Shri Raghunath Chatterjee had the same authority concurrently under a Vakalatnama duly executed in his favour on behalf of he defendant Commission at the trial; according to Mr. Bose the authority derived thereunder did not cease on the disposal of the suit by the trial court but the same continued to remain in force so as to empower Shri Chatterjee to file an appeal against the trial court's decree on behalf of the defendant. In our view such is plainly the position in law in view of the provisions of Order 3, Rule 4 (1) and (2); Sub-Rule (2) clearly lays down that every appointment of a pleader under Sub-rule (1) would remain in force until determined with leave of the court by a writing signed by the client or the pleader, as the case may be, and filed in court or until the client or the pleader dies or until all proceedings in the suit are ended; under the explanation an appeal from a decree or order in the suit is a proceeding in the suit for the purpose of Sub-Rule (2 ). At the trial the defendant having appointed Sri Raghunath Chatterjee to be the pleader on their behalf, obviously such appointment survives the disposal of the suit by the trial court for the purpose of filing an appeal against the trial court's decree-such appointment not having been terminated otherwise as contemplated by Sub-Rule (2) of Rule 4 of Order 3 of the Code. ( 12 ) NOW the learned Judge in the court of appeal below has taken the view that the Vakalatnama that was executed in favour of Shri Raghunath Chatterjee at the trial was not so executed by an authority having the power to do so on behalf of the Commission and that, in any event, in the fact and circumstances such a power stood determined at the time when the Memorandum of Appeal was presented. Mr. Motilal appearing on behalf of the plaintiff-respondent has also contended as such before us. In our view neither of he above tow conclusions of he learned Judge is sustainable. Under entry 30 (a) of the Schedule of Delegated Powers the delegations being made by the Commission in exercise of its powers under section 26 of the said Act the power to appoint attorneys, solicitors, advocates, counsel for and on behalf of the Commission to appear, act, plead and conduct all cases or suits in courts ha been delegated amongst others to the members of the commissions. The learned Judge clearly misread the delegation in thinking that term 'member' does not mean and include the Chairman of the Commission and, as such, the power delegated to a member does not ensure in favour of the Chairman. He not only overlooked the definition clause in section 2 (e) of the said Act where the member has been defined to mean "a member of the Commission and includes the Chairman" but also section 4 of the Act which clearly shows that the Chairman is none but one amongst the members; that apart the delegation itself in specifying the categories of authorities exercising delegated powers has clearly specified that a member of the Commission would include the Chairman also. Relying upon a later delegation dated July 9, 1974, it was contended before us by Mr. Motilal that that the subsequent specific delegation of such a power to the Chairman necessarily carries with it an implication that previously such a power was not delegated to the Chairman. We are, however, unable to agree with Mr. Motilal on this point. In our considered opinion no such implication can reasonably be read from the subsequent delegation of the year 1974. Under this later delegation a change in the scheme was introduced. We are, however, unable to agree with Mr. Motilal on this point. In our considered opinion no such implication can reasonably be read from the subsequent delegation of the year 1974. Under this later delegation a change in the scheme was introduced. Unlike the previous delegation of 1969, the 1974 delegation in specifying the categories of authorities exercising delegated powers the Chairman has been distinguished from a member and wider powers have been conferred upon the Chairman than those under the 1969 delegation; indeed under the 1974 delegation the Chairman has bee vested with all the powers of the Commission except those the exercise of which would require the approval of he commission itself. Therefore, the two delegations cannot be read in the manner suggested by Mr. Motilal so that the power to appoint a pleader which was not vested in the Chairman earlier was so vested only in the year 1974. One is only to look to the earlier delegation to find that on its unambiguous terms the Chairman is a member and, as such, was duly authorized to exercise all the powers which were delegated to such a member; moreover, it does not stand to reason why if an ordinary member is vested with the authority to appoint a pleader, such a power was not intended to be given to the Chairman who is none else than the foremost amongst the members. We, therefore, hold that he learned Judge in the court of appeal below went wrong in holding that the Chairman had not the authority to appoint Shri Raghunath Chatterjee as a pleader on behalf of he Commission as he did at the trial. It is rather unfortunate that an appointment which was never challenged in course of the trial was held to be invalid by the court of appeal below upon a clear misreading of the legal position referred to hereinbefore. ( 13 ) IN our view, the learned Judge in the court of appeal below was equally wrong in thinking that the Vokalatnama executed in favour of Shri Raghunath Chatterjee at the trial stood terminated in the facts and circumstances. As we have indicated hereinbefore under Order 3, Rule 4 of the Code of the authority in favour of Shri Chatterjee would continue for the purpose of filing the appeal, there being no termination otherwise in accordance with Sub-Rule as aforesaid. As we have indicated hereinbefore under Order 3, Rule 4 of the Code of the authority in favour of Shri Chatterjee would continue for the purpose of filing the appeal, there being no termination otherwise in accordance with Sub-Rule as aforesaid. The learned Judge takes the view that when a fresh Vokalatnama had been executed and when the appeal had been preferred on the authority of that Vokalatnama and when several interlocutory orders had been obtained by Shri Raghunath Chatterjee on the authority of such a new Vokalatnama, it must be taken that the previous authority under the previous Vokalatnama stood determined and that the appeal had not been filed on the earlier authority. Such is also the contention of Mr. Motilal before us, however, unable to share this view. The appeal had admittedly been filed by Shri Chatterjee on behalf of the Commission. The only question is whether Shri Chatterjee had the authority to do so. If he had the necessary authority under either of the two Vokalatnamas, the filing of the Memorandum of Appeal by him on behalf of the Commission cannot be held to be incompetent or without authority. Merely because the appeal has been filed along with a new Vokalatnama, it cannot be said that it had been so filed only on the authority delivered from that Vokalatnama and not on any other valid authority still possessed by Shri Chatterjee when the Vokalatnama so filed along with the Memorandum is found to be invalid. In our view, it is the authority to file the appeal that matters and not how the authority is derived. If the subsequent authorization has failed, there is no reason why Shri Chatterjee cannot fall back upon the original authorization. The learned Judge in the court of appeal below is equally wrong in thinking that execution of subsequent Vokalatnama constitutes determination of an earlier one. He failed to take note of the fact that in the present case both the Vokalatnamas were executed in favour of the same lawyer, namely, Shri Raghunath Chatterjee and only if the later one superseded the earlier. But such is not the case here, the later one constituting an invalid appointment necessarily did not override the earlier one which still continued to remain in force in view of the specific provision of Order 3, Rule 4 (2) of the Code. ( 14 ) INCIDENTALLY, Mr. But such is not the case here, the later one constituting an invalid appointment necessarily did not override the earlier one which still continued to remain in force in view of the specific provision of Order 3, Rule 4 (2) of the Code. ( 14 ) INCIDENTALLY, Mr. Motilal contended that the Vokalatnama that was executed by the Chairman at the trial was not one on behalf of the Commission but was so executed on his own behalf and hence that Vokalatnama conferred no power on Shri Chatterjee to file the Memorandum of Appeal on behalf of the Commission. Acceptance of this objection would necessarily mean that under that Vokalatnama; Shri Chatterjee could neither appear in the suit on behalf of the Commission nor file any written statement on its behalf. We are, however, unable to accept such a contention for the simple reason that the Chairman himself was not a party defendant in the suit. The defendant in the suit was "oil and Natural Gas Commission, a body corporate constituted under the Oil and Natural Gas Commission Act, 1959, having its Registered Office at Tel Bhavan, Dehradun, U. P. , represented by its Chairman, having its registered office at the above address. " Appearance was made on behalf of such a defendant by Shri Raghunath Chatterjee on the authority of the Vakalatnama executed in his favour by the then Chairman of the Commission. It is obvious, therefore, that though in the body of the Vakalatnama, it was not specifically recited that the Chairman was executing the Vakalatnama for and on behalf of the Commission, it is quite evident that in the facts and circumstance it was being so executed. Throughout the trial such a Vakalatnama was accepted and treaded as one executed on behalf on the defendant Commission and Shri Chatterjee was allowed to contest the suit representing the defendant Commission on the authority of such a Vakalatnama. Such being the position, it is now too late for Mr. Motilal to argue that the Vakalatnama so executed by the Chairman was not one on behalf of the defendant Commission. Such being the position, it is now too late for Mr. Motilal to argue that the Vakalatnama so executed by the Chairman was not one on behalf of the defendant Commission. The Court and the parties having accepted the position that such a Vakalatnama was being filed on behalf of the defendant Commission, the Chairman not being a party defendant in the suit and, as such, having no occasion to file any power on his own behalf, it would be wholly unjust to allow Mr. Motilal to raise such a technical objection at this state. ( 15 ) ON the conclusions as above, we must accept the contention of Mr. Bose that the Memorandum of Appeal that was filed on behalf of the Commission before the court of appeal below was so filed competently by Shri Raghunath Chatterjee acting for and on behalf of the defendant Commission by virtue of the authority derived from the Vakalatnama which was executed in his favour by the Chairman at the trial which continued to remain in force even at the time when the Memorandum was so presented. The conclusion of the learned Judge in the court of appeal below to the contrary is clearly erroneous in law and, as such, cannot be sustained. On this finding Mr. Bose must succeed on the merits. ( 16 ) BUT assuming for a moment that neither of the two Vakalatnamas refers to hereinbefore were validly executed so as to confer thereby appropriate authority on Shri Raghunath Chatterjee to file the Memorandum of Article that was filed by him on June 21, 1979, yet the learned Judge could not have rejected the Memorandum without considering as to whether such a defect could subsequently be removed by filing a valid power in favour of the filing lawyer as proposed in defendant-appellant's application dated November 13, 1979. As we have indicated above a fresh Vakalatnama duly executed by the legal adviser was filed along with this application. There can be no doubt that the legal adviser had the necessary authority under the delegation to appoint a pleader on behalf of the Commission and, as such, to execute a Vakalatnama as executed in favour of Shri Raghunath Chatterjee. Acceptance of such a power as proposed would really amount to mending the defect and bringing the defective power to order. Acceptance of such a power as proposed would really amount to mending the defect and bringing the defective power to order. No doubt, such a Vakalatnama was filed subsequent to the filing of the appeal and, admittedly, long beyond the period of limitation for the presenting of the appeal. But it is now well settled that notwithstanding such limitation it is permissible to do so. Though it was contended by Mr. Motilal incidentally that such an application was not pressed by the defendant-appellant we are unable to accept such a contention. There is no indication in this regard in the judgment of the court of appeal below. On the other hand, it appears from the judgment itself that pointed reference was made to this application which involved an issue which was specifically kept reserved for consideration at the time of hearing of the appeal. ( 17 ) ORDER 41, Rule 1 prescribes the manner in which a Memorandum of Appeal is to be signed by the appellant or his pleader and presented to the court or to such other officer as it appoints in this behalf. In the present case the Memorandum which was filed otherwise in accordance with that Rule was signed no by the appellant but by this pleader who was acting on a defective authority; in substance there was a technical breach of Order 3 Rule 4 of the Code arising out of a bonafide mistake. Such breach of the rule of procedure is a mere irregularity which can be removed at any point of time. The memorandum was filed by the pleader authorized by the defendant; the defect in the authority being removed the whole proceeding is validated with retrospective effect from the date of filing. It was held as such by Sir Asutosh Mukherji in a Bench decision in the case of Chayemannessa Bibi -v- Kazi Basrar Rahaman, 11 C. L. J. 235. This Court reaffirmed the said view in the case of Jhumarmull Sethia -v- Champalal Bothra, reported in AIR 1960 Calcutta 1961. Reference may also be made to a decision of the Jammu and Kashmir High Court in the case of Raghunath Devi -v- Administrator, Srinagar Municipality, reported in AIR 1962 Jammu and Kashmir, 83 to show that consensus of judicial opinion is in favour of acceptance of the Calcutta view as aforesaid and the decisions relied on by Mr. Reference may also be made to a decision of the Jammu and Kashmir High Court in the case of Raghunath Devi -v- Administrator, Srinagar Municipality, reported in AIR 1962 Jammu and Kashmir, 83 to show that consensus of judicial opinion is in favour of acceptance of the Calcutta view as aforesaid and the decisions relied on by Mr. Motilal are clearly distinguishable for reasons as given by the learned Judges of the Jammu and Kashmir High Court in the decision as aforesaid. Such being the position, in our view there is ample substance in the alternative contention of Mr. Bose that even upon the finding of the learned Judge it was not open to him to reject the Memorandum of Appeal without permitting the defendant Commission to rectify the defect in the manner proposed by their application filed on November 13, 1979. We are unable to accept the contention of Mr. Motilal that in this application the defendant Commission never prayed for removal of the defect by acceptance of a fresh power. Mr. Motilal is inspired to argue as such because in the application the defendant Commission had taken the stand that even otherwise the Memorandum of Appeal had been validly presented by Shri Chatterjee by virtue of his original authority derived from the Vakalatnama filed at the trial. But we find no reason to agree with Mr. Motilal that only because the defendant Commission was taking such a stand, it was not open to the Commission to make an alternative prayer as the Commission really did in their application filed on November 13, 1979 namely, that in the event they fail in their said stand the subsequent Vakalatnama may by accepted for the purpose of curing the defect. We are therefore of the opinion that assuming the position that the Memorandum of Appeal was presented by Shri Chatterjee on the basis of a defective Vakalatnama, such presentation was duly validated by the defendant-appellant's subsequent ratification thereof by filing of a fresh power duly executed in his favour on November 13, 1979. This dispose of the rival contentions on the merits. ( 18 ) NOW we proceed to consider the preliminary objection raised by Mr. Motilal. According to Mr. Motilal, the order impugned being one of rejection of the Memorandum no second appeal lies to this Court. This dispose of the rival contentions on the merits. ( 18 ) NOW we proceed to consider the preliminary objection raised by Mr. Motilal. According to Mr. Motilal, the order impugned being one of rejection of the Memorandum no second appeal lies to this Court. We have indicated hereinbefore that the appellant did anticipate such an objection when they filed an application under section 115 of the Code in the alternative. ( 19 ) IT cannot but be observed that there is some divergence in judicial opinion as to whether an order rejecting a Memorandum of Appeal is a decree and, as such, appealable or not. In some cases, undoubtedly a view has been taken that where such a rejection amounts to disposal of the appeal itself, it is appealable. On the other hand, where the rejection does not constitute disposal of the appeal on its merits, it has been held not to be appealable. Now in the present case as we have indicated at the outset, the learned Judge in the court of appeal below himself was in two minds as to how he would dispose of the appeal. He started by saying that the appeal should be dismissed but made the order that the appeal is rejected. We are told that he subsequently refused to draw up a decree because in his view he had merely rejected the Memorandum. On the reasons given by him, it appears to us that the really intended to reject the Memorandum as one not filed in accordance with the Order 41, Rule 1 of the Code. Most of the High Courts including this Court has taken the view that such a rejection does not constitute disposal of the appeal and some courts have gone to the extent of taking the view that even after rejection of such a Memorandum, a fresh Memorandum could be entertained in view of the provisions of Order 7, Rule 13 read with Section 107 (2) of the Code. Be that as it may, we feel inclined to agree with Mr. Motilal that in the order of the learned Judge in its substance amounts to rejection of the Memorandum made in exercise of powers under Order 41, Rule 3 because of the defect found. Such being the nature of the order there was no disposal of the appeal on merits and, as such the order is not appealable. Motilal that in the order of the learned Judge in its substance amounts to rejection of the Memorandum made in exercise of powers under Order 41, Rule 3 because of the defect found. Such being the nature of the order there was no disposal of the appeal on merits and, as such the order is not appealable. ( 20 ) THIS leads us to consider whether the order impugned should be set aside in exercise of our powers under section 115 of the Code. According to Mr. Motilal this Court is not entitled in exercise of its revisional powers to set aside such an order, however, erroneous the same may be. We are, however, unable to agree with Mr. Motilal. In our view, the learned Judge arrived at an erroneous finding in respect of a jurisdictional fact, namely, whether the appeal that was presented was really presented in accordance with law or not for the purpose of being entertained for consideration on its merits. Such a finding was again arrived at upon a clear misreading of the statutory provision and the statutory delegation made under the statue. On such an erroneous finding he refused to exercise his jurisdiction of entertaining the appeal on its merits. It appears to us to be well settled now that if erroneous decision results in the Subordinate Court exercising a jurisdiction not vested, in it by law or failing to exercise a jurisdiction so vested, a case for revision arises under sub-section (a) or sub-section (b) of section 115 of the Code. Reference may be made to the decision of the Privy Council in Joy Chand v. Kamamlakashya, reported in 76 I. A. 131. It has been approved by the Supreme Court in Jagadish Prosad v. Gangal Prosad, reported in A. I. R. 1959 S. C. 492. In our view, the present case squarely comes within the aforesaid sanction. Here, the Court has refused to exercise a jurisdiction vested in it under a misapprehension of law and on an erroneous construction of the Statue and the statutory delegation and the same has resulted in material failure of justice. That makes it a good case for exercise of revisional jurisdiction by this Court. We, therefore, hold that the second appeal presented to this Court not being maintainable must be dismissed as such, but the revisional application in the alternative must succeed. That makes it a good case for exercise of revisional jurisdiction by this Court. We, therefore, hold that the second appeal presented to this Court not being maintainable must be dismissed as such, but the revisional application in the alternative must succeed. The impugned order is, accordingly, set aside and the appeal before the lower appellate court is remanded to that court for rehearing on its merits. We further direct that the appeal be so heard either by the District Judge himself or by Additional District Judge other than Additional District Judge, 7th Court, Alipore to whom it may be transferred by the learned District Judge. Let the hearing of the appeal in the court below be expedited. There will be no fresh order for costs in this court. Let the records be sent down forthwith by special messenger at the cost of the respondent. Preparation of a formal decree is dispensed with. B. C. Chakraborti, J. I agree. Appeal dismissed.