Judgment :- Balakrishna Menon, J. - (for himself and Shamsuddin. J.) This second appeal by the plaintiff is against the dismissal of his appeal by the lower appellate court consequent on the dismissal of I. A. No. 758/1980 under S.5 of the Limitation Act. 1963 for condonation of the delay of 3 days in filing the appeal. It censes up before a Full Bench on reference made by Varghese Kalliath J. for the reason that M.P. Menon J. bad is C.R.P. No. 318 of 1983 (the decision later reported in 1987 (1) KLT 543) declined to follow the decision of a Division Bench of this Court in Chandrika Amma V. Mohammed (1984 KLT 677) in preference to as earlier decision of a Division Bench in Chakkuvarkey v. Devassy Kathanar (AIR 1962 Ker.104). M.P. Menon J. had also dissented from the view expressed by Viswanatha Iyer J. in Kunhiraman v. Rossy (1979 KLT 718). Kalliath J. in a very illuminating order of reference has dealt with the points of view expressed in the two Division Bench rulings of this Court referred to above and has also expressed his Lordship's view agreeing with the principle laid do»n is Kunhiraman v. Rossy (1979 K. L. T. 718). Kalliath J. in his order of reference states: "I feel that when on a question of law this Court speaks 'in discordant notes through two Division Benches. certainly. it will create difficulties and. to borrow the phraseology used by M.P. Menon I.. it will give a nervous shock to the litigants and the legal profession. Sir Williams Jones says "No man who is not a lawyer would ever know how to act and no lawyer would. is many instances. know how to advise. unless courts are bound by authority." In such circumstances. I feel that it is more commendable. staid and decorous to refer the matter to a larger Bench than to speculate upon improvements in those precedents which would give not only a nervous shock but also a traumatic neurosis to the litigants and those counsel who are bound to advise their clients on the correct position of law." 2. I feel that it is more commendable. staid and decorous to refer the matter to a larger Bench than to speculate upon improvements in those precedents which would give not only a nervous shock but also a traumatic neurosis to the litigants and those counsel who are bound to advise their clients on the correct position of law." 2. Referring to Kunhiraman'a case M.P. Menon J. stated in Viswambharan v. Parameswaran Asary (1987 (1) KLT 543) at page 351: "In Kunhiraman v. Rossy (1979 KLT 718) G. Viswanatha Iyer I. is seen to have taken the view that when a delay petition is dismissed and the appeal Is consequently dismissed as barred. the remedy is to file an appeal against the decree "if that is allowed by law" and take a ground in that appeal that the lower court was wrong in not excusing the delay. My familiarity with the pro visions of the CPC is nothing when compared with that of his lordship; still. I should point out. with respect. that his lordship's attention does not appear to have been drawn to the newly introduced provisions of Rule 3A of Order 41 characterising a delayed appeal only as one "proposed to be filed". The decision of Viswanatha Iyer J. in Kunhiraman's cais is in conformity with the decision of a Full Bench of this Court in Haji Hassan Rowther v. Bulgheese Beevi (1971 KLT 613). The Full Bench did not agree with the view expressed by Vaidialingam J. in Kuruvilla v. Rajagopala Iyer (1966 KLT 916) that a revision is maintainable against an order dismissing a petition under S.5 of the Limitation Act for condonation of delay in filing an appeal and if the revision is allowed the order dismissing the appeal on the ground of delay will have no effect in law. The Full Bench observed: "In Kuruvilla v. Rajagopala Iyer 1966 KLT.916, Vaidialingatn, J. has taken the view that when the order dismissing the petition to condone the delay in filing an appeal is interfered with in revision the order of the judge dismissing the appeal based on the rejection of the petition to excuse delay will be absolutely void and will have no effect in law. We cannot agree. We cannot agree. The order dismissing the appeal can be only an illegal order which will have to be set aside only in a second appeal and not in a revision petition." M. P. Menon J. has not adverted to the Full Bench decision in Haji Hassan Rowther's case. The provisions of R.3A of Order 41 CPC. introduced by the Amendment Act 104/1976 in our view do not alter the legal position. The amendment introducing R.3A was on the basis of the 14th and 27th reports of the Law Commission. In its 27th report the Law Commission recommended: "In the Fourteenth Report. attention was drawn to the practice which was previously followed of admitting an appeal subject to objections as to limitations being raised at the time of hearing. where the memorandum of appeal was accompanied by a petition seeking condonation of delay under S.5, Limitation Act. This practice has been disapproved by the Privy Council. which has stressed the expediency of adopting a procedure securing at the stage of admission the final determination (after due notice) of question of limitation affecting the competence of the appeal. Following this advice. the High Courts of Andhra Pradesh. Bombay and Madras have made appropriate amendments to the rule. and the Fourteenth Report recommended that similar amendments be made by other High Courts. The proposed amendment carries out this recommendation. and follows the Madras Amendment. O. XLI, R.1(3) with verbal modifications. The Bombay amendment is contained in O. XLI, R.3-A (Bombay)." The provision was accordingly introduced by the Amendment Act with a view to secure at the stage of admission of the appeal a final determination of the question of limitation. R.3A of 0.41 CPC reads: "When an appeal is presented after the expiry of the period of limitation specified therefor. it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2) if the Court sees no reason to reject the application without the issue of a notice to the respondent. notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13. as the case may be. (2) if the Court sees no reason to reject the application without the issue of a notice to the respondent. notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13. as the case may be. (3) where an application has been made under sub-rule (1). the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not. after hearing under Rule 11. decide to hear the appeal." It is clear from sub-rule (1) that there is a proper presentation of the appeal filed out of time if it is accompanied by an application to condone delay supported by an affidavit setting forth the grounds for the condonation of delay. Sub-rule (2) requires the application to be finally decided by the court before it proceeds to deal with the appeal under Rule 11 or Rule 13. as the case may be. A dismissal of the application for condonation of delay results in the dismissal of the appeal which can only be under R.11. S.3 of the Limitation Act also requires an appeal filed after the prescribed period of time to be dismissed subject to the provisions contained in Ss.4 to 24. Sub-rule (3) of R.3A does not render an appeal properly presented under sub-rule (1) a proposed appeal. Sub-rule (3) in spite of its language would only mean that no 'Stay of the execution of the decree appealed against shall be granted before the court after hearing the appeal under R.11 decides to admit the same. An appeal presented out of time is nevertheless an appeal in the eye of law for all practical purposes (vide Musala Annaji Rao v. Boggarapu Papalah Setty AIR 1975 A.P. 73). The question whether an appeal properly presented with a petition to condone the delay can be admitted or not is at the second stage and to reach that stage She application has to be disposed of finally. S.3 of the Limitation Act also makes it obligatory on the part of the court to dismiss an appeal presented out of time subject of course. to the provisions of Ss.4 to 24. S.3 of the Limitation Act also makes it obligatory on the part of the court to dismiss an appeal presented out of time subject of course. to the provisions of Ss.4 to 24. In a case where an appeal has been admitted and then dismissed of a preliminary objection raised at the hearing disclosing the fact that the appeal was filed out of time. is it possible to say that the order dismissing the appeal. though on the ground of limitation. is not a decree? The question is whether a dismissal of the appeal after considering an application to condone the delay should be treated differently. An appeal filed out of time is required to be dealt with by the appellate court under S.3 of the Limitation Act and an order dismissing the appeal is a decree that can be subject of a second appeal as held by the Full Bench in Haji Hassan Rowther's case. Sub-rule (4) of R.11 of O.41 CPG requires an appellate court. not being the High Court. dismissing an appeal under sub-rule (1) to deliver a judgment and a decree is to be drawn up in accordance with the judgment. It is thus clear that the dismissal of an appeal under 0.41 R.11 postulates the drawing up of a decree which can be the subject of a further appeal under 0.41 R.1 read with 0.42 C.P.C. Sub-role (4) of R.11 does not dispense with the need of a decree when the High Court dismisses an appeal under sub-rule (1). The only exception is that it need not deliver a judgment recording its reasons for dismissing the same. It seems to us clear that R.3A, of 0.41 introduced by the CPC. Amendment Act. 1976 does not io any way affect the principle laid down by the Full Beach in Haji Hassan Rowther's case and by Viswanatha Iyer J. in Kunhiraman's case. 3. Mahmood J. on behalf of & Division Bench of the Allahabad High Court stated as early as in 1884 io Gulab Rat v. Mangli Lai (ILR VII Allahabad 42) at p. 43: "In the Civil Procedure Code there is no separate provision which allows the appellate Court to "reject" a memorandum of appeal on the ground of its being barred by limitation. S.543 is limited to cases in which the memorandum of appeal is not drawn up in the manner prescribed by the Code. S.543 is limited to cases in which the memorandum of appeal is not drawn up in the manner prescribed by the Code. and it is only by applying S.54(c), mutatis mutandis, (as provided by the last part of S.582). to appeals that the Code can be understood to make provision for rejection of appeals as barred by limitation. However. S.4 of the Limitation Act clearly lays down that every "appeal presented after the period of limitation prescribed therefor shall be dismissed."- It is therefore clear that the order of the District Judge in this case must be taken to be one which falls under the definition of "decree" within the meaning of S.2 of the Code. as the order. so far as the judge was concerned. disposed of the appeal." In M/s. Mela Ram & Sons v. Commr. of Income-tax. Punjab (AIR 1956 SC 367) a question arose whether an appeal dismissed by the Appellate Assistant Commissioner as filed out of time can be the subject of a further appeal before the Income-tax Appellate Tribunal under S.33 of the Income-tax Act. 1922. S.30 (1) of the Act coffers en the assessee a right of appeal against the orders passed by the Income-tax Officer under the sections specified therein. S.30(2) provides that an appeal shall ordinarily be presented within 30 days offence order of assessment; but the Appellate Assistant Commissioner may admit en appeal after the expiry of the period if he is satisfied that the appellant had sufficient cause for not presenting the appeal within time. S.31(3) specifies the orders that may be passed in the appeals according as they are directed against orders passed under the one or the other of the sections of the Act which are specified in S.30(1). When an appeal is against an order of assessment under S.23. it is provided in S.31(3). els. (a) and (b) that in disposing of the appeal the Appellate Assistant Commissioner may (a) confirm. reduce. enhance or annul the assessment. or (b) set aside the assessment and direct the Income-tax Officer to make a fresh assessment after making such further enquiry as be thinks fit. S.33(1) enacts that any assessee objecting to en order passed by an Appellate Assistant Commissioner under S.28 or S.31 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him. S.33(1) enacts that any assessee objecting to en order passed by an Appellate Assistant Commissioner under S.28 or S.31 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him. The question was whether an order dismissing an appeal presented cut of time is one under S.30(2) or under S.31 of the Act. If it is the former. there is no appeal provided against U; it it is the latter. it is open to appeal to the Appellate Tribunal under S.33. Veckafararna Ayyar J. speaking for a Bench consisting of himself. Das C. J. and Bhagwati J. stated at p. 371: "S.30(1) confers on the assessee a right of appeal against certain orders. and an order of assessment under S.23 is one of them. The appellant therefore had a substantive right under S.30(1) to prefer appeals against orders of assessment made by the Income-tax Officer. Then. we come to S.30(2). which enacts a period of limitation within which this right is to be exercised. If an appeal is not presented within that time. does that cease to be an appeal as provided under S.30(1)? It is well established that rules of limitation pertain to the domain of adjectival law. and that they operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with S.30(1) must. therefore. be an appeal in the eye of law. though having been presented beyond the period mentioned in S.30(2) it is liable to be dismissed 'in limine'. There might be a provision in the statute that at the end of the period of limitation prescribed. the right would be extinguished. as for example. S.28. Limitation Act; but there is none such here. On the other hand. in conferring a right of appeal under S.30(1) and prescribing a period of limitation for the exercise thereof separately under S.30(2). the Legislature has evinced an intention to maintain the distinction well-recognised under the general law between what is a substantive right and what is a matter of procedural law. In 'Nagendranath v. Surest) Chandra'. 1932 PC 165 (AIR V 19) at p. 167 (K). Sir Dinshaw Mulla construing the word. 'appeal in the third column of Art.182, Limitation Act observed: "There is no definition of appeal In the Code of Civil Procedure. In 'Nagendranath v. Surest) Chandra'. 1932 PC 165 (AIR V 19) at p. 167 (K). Sir Dinshaw Mulla construing the word. 'appeal in the third column of Art.182, Limitation Act observed: "There is no definition of appeal In the Code of Civil Procedure. but their Lordships have no doubt that any application by a party to an appellate Court. asking it to set aside or revise a decision of a subordinate Court. is an appeal within the ordinary acceptation of the term. and that it is no less an appeal because it is irregular or incompetent." These observations were referred to with approval and adopted by this Court in 'Raja Kulkarni v. The State of Bombay'. 1954 SC 73 (AIR V 41) at p. 74 (L). In 'Promotho Nath Roy v. W.A. Lee'. 1921 Cal 415 (AIR V 8) (VI). an order dismissing an application as barred by limitation after rejecting an application under S.5. Limitation Act to excuse the delay in presentation was held to be one "passed on appeal" within the meaning of S.109. Civil P.C. On the principles laid down in these decisions. it must be held that an appeal presented out of time is an appeal. and an order dismissing it as time-barred is one passed in appeal." The Supreme Court affirms the decision of the Madras High Court in Commr. of Income-tax v. Shaxadi Begum (AIR 1952 Mad. 232) where Satyanarayana Rac J. stated at p. 234: "If the appeal is dismissed as incompetent or is rejected as it was filed out of time and no sufficient cause was established. it results in an affirmation of the order appealed against." The Supreme Court affirms also the following observation of Chakravarti J. & Gour Mohan Mullick v. Commr, of Agricultural Income-tax (AIR 1954 Cal. 468) at p. 372: "An appellate order may not. directly and by itself. confirm or reduce or enhance or annul an assessment and may yet dispose of the appeal. If it does so. 468) at p. 372: "An appellate order may not. directly and by itself. confirm or reduce or enhance or annul an assessment and may yet dispose of the appeal. If it does so. it is immaterial whether the ground is a finding that the appeal is barred by limitation or a finding that the case is not a fit one for extension of lime or both." The following observation of Chagla C.J. in K.R. Prpbunderwalls v. Commissioner of Income-tax (AIR 1952 Bom.157) at page 158 is also approved as laying down the correct principle: "although the Appellate Assistant Commissioner did not bear the appeal on merits and held that the appeal was barred by limitation his order was under S.31 and 'the effect of that order' was to confirm the assessment which had been made by the Income-tax Officer." Referring to the above and other cases the Supreme Court concludes at page 373: "There is thus abundant authority for the position that S.31 should be liberally construed so as to include cot only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues. such as limitation and the like." 4. The observations of Sir Dinshaw Mulla in Nagendranath v. Suresh Chandra (1932 P.C.165 at P. 167) quoted in the above passage from the judgment of Venkatarama Ayyar J. were made while considering the question of limitation under Art.182 of the Limitation Act. 1908. Under the said Article the period of limitation for the execution of a decree of a civil court was three years from the date of the decree or where there has been an appeal from the date of the final decree of the appellate court. The Privy Council held that the appeal even though irregular in form as not being an appeal against the decree of a Subordinate Judge and being insufficiently stamped for that purpose was nevertheless in appeal for the purpose of column 3 of Art.182 of she Limitation Act. In Raja Kulkarni v. The State of Bombay (AIR 1954 SC 73) the Supreme Court observes: "Whether the appeal is valid or competent is a question entirely for the Appellate Court before whom the appeal is filed to determine. and this determination is possible only after the appeal is beard. In Raja Kulkarni v. The State of Bombay (AIR 1954 SC 73) the Supreme Court observes: "Whether the appeal is valid or competent is a question entirely for the Appellate Court before whom the appeal is filed to determine. and this determination is possible only after the appeal is beard. but there Is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent. eg:, when it is held to be barred by limitation or that it does not lie before that court or is concluded by a finding of fact under S.100 of the Civil Procedure Code. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever. it does not follow that there was no appeal pending before the Court." 5. In Board of Revenue v. Mis, Raj Brothers Agencies ((1973) 3 SCR 492) the Supreme Court was concerned with the question whether & revision under S.34 of the Madras General Sales Tax Act against the order of the Appellate Assistant Commissioner was barred by reason of the dismissal of at) appeal against the same order by the Appellate Tribunal as time barred. Under S.34 of the said Act a revision lies to the Board of Revenue against the order of the Appellate Assistant Commissioner if the order had not been the subject of an appeal before the Tribunal. The Supreme Court after referring to the decision in Mela Ram & Sons' case (supra) preferred to rest its decision applying the principle of stare decisis based on the decision in Erode Yarn Stores v. State of Madras (14STC724). The Supreme Court observed at page 495: "In the circumstances of the present case it is not necessary for us to consider whether the decision of the High court in Erode Yarn Stores' case was correctly decided. That decision was rendered in respect of a provision in a State Act. It was rendered as far back as 1963. In that case the High Court accepted the contention of the State. That decision has stood the field till now. It oust have governed several cases. decided thereafter. After that decision was rendered. the Act had been subjected to several amendments. The Legislature has not thought fit to amend S.34. To put it differently the State had prayed for and obtained a particular interpretation of S.34. That decision has stood the field till now. It oust have governed several cases. decided thereafter. After that decision was rendered. the Act had been subjected to several amendments. The Legislature has not thought fit to amend S.34. To put it differently the State had prayed for and obtained a particular interpretation of S.34. It has accepted that interpretation to be correct ever since 1963. Under these circumstances it is not proper for this Court to upset that decision at this late stage and disturb a settled position in law. If the State wants to change the law it is open to move the Legislature for making the necessary amendments. We find it difficult to appreciate the State conduct in taking inconsistent positions." Thus the principle in Mela Ram & Sons' case though accepted was not applied in Raj Brothers' case for the reason that the decision is Erode Yarn Stores' case had stood the field from 1963 onwards and. in spite of several amendments effected thereafter. the Legislature had not thought it fit to amend S.34 of the Madras General Sales-tax Act. 6. Pathak J. as his Lordship the was in Rant Choudhury v. Lt.. Col. Suraj Jit Choudhury (1982) 2 SCC 596. followed Mela Ram & Sons' case and stated at p. 600: "In the present case. the appeal was dismissed as barred by limitation. Thai it was an appeal even though barred by time is clear from Mela Ram & Sons v. C.I.T. where Venkatarama Ayyar J. speaking for the Court. after referring to Nagendra Nath Dey v. Suresh Chandra Dey, Raja Kulkarni v. State of Bombay and Promotho Nath Roy v. W.A.Lee held that "an appeal presented out of lima is an appeal. and as order dismissing it as time-barred is one passed is appeal." There can be no dispute then Ida; is law what the respondent did was to file an appeal and that the order dismissing it as time-barred was one disposing of the appeal." 7.A similar question as was mind is Raj Brothers' case (Supra) came up for decision before a Division Bench of this Court in Thankappan v. Trivandrum Dt. Co-op. Bank Ltd. (1986 KLT 263). S.82 of the Kerala Cooperative Societies Act provides for an appeal against the orders of the Registrar under S.73 to the Co-operative Tribunal. Co-op. Bank Ltd. (1986 KLT 263). S.82 of the Kerala Cooperative Societies Act provides for an appeal against the orders of the Registrar under S.73 to the Co-operative Tribunal. S.84 invests the Tribunal with a power of revision in respect of proceedings in which an appeal lien to it with a proviso that the Tribunal shall not entertain a revision if the time for appeal against the decision or order has not expired or the decision or order has been made the subject matter of an appeal. The question before the Division Bench was whether an appeal presented before the Tribunal out of time and dismissed as time-barred would bar a revision under S.84 of the Co-operative Societies Act. One of us (Sukutnaraa J.) on behalf of the Division Bench stated at page 265: "When an aggrieved party approaches the appellate forum with a prayer for a modification of the order of the inferior authority. there would be an appeal. The appeal may have very many defects or disabilities; some of them may be even fatal. The defects and disabilities of the appeal would not obliterate the factual existence of the appeal. In a sense. it may be a still born one. never having had a life in it. when it was presented before the appellate venue. Still the law would deem that there was an appeal carried right up to portals of the appellate forum. This appears to be the legal position in relation to the birth. life and ultimate end of an appeal. as gatherable from judicial decision which have sought to explain the different facets of the concept during the past few centuries." A-G v. Sillem 33 Q. Ex. 209. Colonial Sugar Refining Co. v. Irving (1905) A. C. 369 and Mela Ram & Sons v. /. T. Commissioner AIR 1956 SC 367 are cited is support of the above proposition. Disposal of an appeal filed out of time can only by way of dismissal an provided for is S.3 of the Limitation Act. An appeal registered under R.9 of O.41 CPC to desponed of according to law and a dismissal of the appeal for the reasons of delay is its presentation after the dismissal of an application for condonation of delay ii in substance and effect a confirmation of the decree appealed against. An appeal registered under R.9 of O.41 CPC to desponed of according to law and a dismissal of the appeal for the reasons of delay is its presentation after the dismissal of an application for condonation of delay ii in substance and effect a confirmation of the decree appealed against. I a U. J. S. Chopra V. State of Bombay AIR 1955 SC 633) S. R. Das J. in his concurring judgment stated at p. 642: "The primary and paramount duty of the Court is to decide the appeal or revision and it is to exercise its discretion in so deciding il. In deciding the appeal or revision the High Court may choose which of its powers it will exercise if the circumstances of the case call for such exercise. In a clear case. apparent on the grounds of appeal or revision or on the face of the judgment appeal ad from or sought to be revised it may come to the conclusion that the case has no merit and does not call for the exercise of any of its powers. in which case it may dismiss it summarily. If. however. it has any doubt. it may call for the record or may admit it and issue notice to the respondent and decide It after a full hearing is the presence of all parties. But decide it must at one stage or the other. The discretion conferred on the High Court does not authorise it to say that it will not look at the appeal or the revision. The court's bounden duty is to look into the appeal or revision and decide it. although in the process of arriving at its decision it has very wide discretion. It is further stated at page 643: "Where an appeal or revision is disposed of after a full hearing on notice to the respondent and allowed wholly or in pan it becomes 'ex facie obvious that the judgment appealed against or sought to be revised has been altered by the judgment or decision of the High Court on appeal or revision and a note is made in the record of this alteration. Bui when an appeal or revision is dismissed after full hearing and the sentence is maintained there is outwardly no change in the record when the certificate is sent by the High Court but nevertheless there is an adjudication by the High Court. In the first case it is judgment of acquittal or reduction of sentence and in the second case it is a judgment of conviction. Likewise. when an appeal or revision is summarily dismissed. such dismissal maintains the judgment or order of the lower court and a note is made of such dismissal in the record and in the eye of the law it ii the judgment of the High Court that prevails. To the uninstructed mind the change may be more easily noticeable in the first case than in the other two cases but on principle there is no difference. I can see no reason for holding that there is a merger or replacement of judgment only in the first two cases and not in the last one. In my opinion. it makes no difference whether the dismissal is summary or otherwise. and there is a judgment of the High Court is all the three cases." On the question of merger the majority judgement of Bhagwati J is the above case held that the judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction. after issue of a notice a ad a fall hearing in the presence of bath parties. would replace the judgement of the lower court thus constituting the judgment of the High Court the only final judgment in the case. In considering the question of res judicata far the reason of the dismissal of two connected appeals - one for the defect in printing and the other as barred by limitation-the Supreme Court in Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332) stated at p. 1336: "It is true that the High Court dismissed the appeals arising out of suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps bad not been taken for printing the record. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps bad not been taken for printing the record. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case. even though the order on the High Court may itself not be on the merits. the result of the High Court's decision is to confirm the decision on the issue of the title which bad been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decise of the trial Court on the merits. whatever may be the reason for the dismissal of the appeals arising from suits Nos. 77 and 91. In these circumstances though the order of the High Court itself may not be on the merits. the decision of the High Court dismissing the appeals arising out of suits Nos. 77 and 91 was to uphold the decision on the merits as to issue to title and therefore it must be held that by dismissing the appeals arising out of suits Nos.77 and 91 the High Court beard and finally decided the matter for it confirmed the judgment of the trial Court en the issue of title arising between the parties and the decision of the trial court being on the merits the High Court's decision confirming that decision must also be deemed to be on the merits. To hold otherwise would make res judicata impossible in cases where the trial Court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial court on the merits. It is well settled that where a decree on the merits is appealed from. the decision of the trial court loses its character of finality and what was once res judicate again becomes res sub judice and it is the decree of the appeal Court which will then be res judicata. It is well settled that where a decree on the merits is appealed from. the decision of the trial court loses its character of finality and what was once res judicate again becomes res sub judice and it is the decree of the appeal Court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground. like limitation or default in printing. thus confirming in toto the trial court's decision given on merits. the appeal court's decree cannot be res judicata, the result would be that even though the decision of the trial court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicate. We cannot. therefore. accept the contention that even though the trial Court may have decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits. even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground. with the result that the decision given on the merits also becomes useless as between the parties. We are therefore of opinion that where a decision is given on the merits by the trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground. like limitation or default in printing. with the result that the decision given on the merits also becomes useless as between the parties. We are therefore of opinion that where a decision is given on the merits by the trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground. like limitation or default in printing. it must be held that such dismissal when it confirms the decision of the trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal." A dismissal of as appeal on the ground of limitation was thus held as amounting to a confirmation of the decree of the trial court on the merits of the case and the decision of the appellate court is held to be res judicata on (fee question of title raised in the connected appeal. This decision of the Supreme Court would clearly indicate That the decree of the trial court gets merged in the appellate court's decree eves when the appeal is dismissed on a preliminary ground or as time-barred. In Ramanna v. Sreeramulu (AIR 1958 AP 768) dealing with a case of dismissal at the admission stage under O.41 R.11 C.P.C. Subba Rao C. J. observed at p. 771: "The aforesaid provisions provide two modes for the disposal of an appeal. They were conceived for the expeditious disposal of frivolous appeals without giving notice to the respondent and causing him unnecessary trouble and expense and for the decision of arguable appeals after giving notice to the respondent and giving him an opportunity to support the decision of the trial Court. The difference between the two modes lies only in the manner of disposal but not in the essence. In either case. the appellate Court considers the questions of law and the evidence arising in the appeal and in one case dismisses the appeal in limine as in its view no case is made to hear the respondent to sustain the judgment of the trial court and in the other finds same arguable point of either fact or law which requires to be elucidated by the respondent. In both the cases. the appeal may be dismissed. But in the former case as the respondent is not heard the decree of the trial Court cannot be modified or varied. In both the cases. the appeal may be dismissed. But in the former case as the respondent is not heard the decree of the trial Court cannot be modified or varied. XXX XXX XXX We cannot. therefore. see any justification for the argument that there is a difference in essence between a judgment dismissing an appeal under 0. 41. R.11 CPC or that made under 0. 41. R.37 C.P.C. In both the cases. the judgment of the appellate Court adjudicates upon the rights of the parties. though in one case the manner of disposal is concise and speedy and in the other it takes a more elaborate form and longer time. Whether the appeal is dismissed in limine against the ex parts respondent or dismissed after hearing the respondent. it is the decree of the appellate Court that governs the rights of the parties." It is further stated at p. 772: "If the argument of the learned counsel for the respondents be accepted. it would lead 10 an anomaly which should be avoided unless express provisions of the Civil Procedure Code sustain it. The dismissal of an appeal in lirnine is certainly the formal expression of an adjudication conclusively determining the rights of the parties with regeted to all or any of the matters in controversy in the appeal. It is. therefore. a decree as defined under S.2(2). C.P.C. Ii is common-place that the decree of the trial Court merges with that of the appellate Court. But if the respondents' contention is accepted. there will be two decrees. one that of the appellate court and the other that of the trial court. Each by force of law can be executed. There is no acceptable reason or principle why the legislature intended to have this consequence. The only reason that can be suggested is that the respondent may have had no notice of the appeal and. therefore. the appellate decree may be ignored. The non-issue of notice to the respondent may be a ground for holding that any decree made against him is not binding on him but it cannot efface the legal effect of a valid decree made by the appellate Court. If. as we have held, the appellate decree is the final decree and the decree of the lower court merges with it. If. as we have held, the appellate decree is the final decree and the decree of the lower court merges with it. it follows that the application for amendment of the decree should be made to the appellate Court." In Rani Choudhury's case referred to supra A. N. Sec J. slated with reference to the explanation added to 0.9 R.13 by the C.P.C. Amendment Act 1976 at p. 610: "The disposal of an appeal on the ground of limitation may or may not be adjudication on the merits of the appeal. depending on the particular facts and circumstances of the case and may or may not result in the merger of the decree of the trial court with the decree. if any. of the appellate court; but there cannot be any manner of doubt that when an appeal from the ex parte decree is dismissed on the ground of limitation. the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal." Pathak J„ as be then was. stated at p. 599: "The mere filing of the appeal did not take away the jurisdiction of the trial court to entertain and dispose of the application for setting aside the ex parte decree. It was where the appeal wasl disposed of. and the appellate decree superseded the trial court decree by reversing. confirming or varying it that the trial court could not proceed to set aside its ex parte decree. For the trial court decree was said to have merged with the appellate decree. There are of course cases where the trial court decree does not merge with the appellate decree. Such instances arise when the appeal is dismissed in default. or where it is dismissed as having abated by reason of the omission of the appellant to implead the legal representatives of a deceased respondent or where it is dismissed as barred by limitation. So there is a limited area where the trial court decree merges in the appellate decree. and when that takes place an application before the trial court for setting aside the decree loses all meaning. It was a limited area defined by the operation of the doctrine of merger. From February 1. 1977 the area was extended enormously. With the Explanation in operation. and when that takes place an application before the trial court for setting aside the decree loses all meaning. It was a limited area defined by the operation of the doctrine of merger. From February 1. 1977 the area was extended enormously. With the Explanation in operation. no application for setting aside an ex parte decree can He where the defendant has filed an appeal and the appeal has been disposed of on any ground other than the ground that the appeal has been withdrawn by the appellant." 8. As stated by Subba Rao C. J. a decree dismissing an appeal in limine may not be binding on the respondent for the reason that he had no notice of the appeal and it may be open to him to ignore the decree. It is the same principle that is stated by the Supreme Court in a recent decision in Kewal Ram v. Ram Lubhai (1987) 2 SCC 344). But that does not mean that an appellate decree dismissing an appeal has no legal effect. The legal effect is the confirmation of the decree appealed against whether the dismissal is after hearing the respect or without notice to him. In Kewal Ram's case Khalid J. stated: "It is well settled that when a decree of the trial court is either confirmed. modified or reversed by the appellate decree. except when the decree is passed without notice to the parties. the trial court decree gets merged in the appellate decree. But when the decree is passed without notice to a party. that decree will not. in law. be a decree to which he is a party. Equally so in the case of an appellate decree. In this case these two persons were not served in the suit. A decree was passed ex parte against them without giving them notice of the suit. In law. therefore. there is no decree against them. In the appeal also they were not served. If they bad been served in the appeal. things would have been different. They could have put forward their case in appeal and got appropriate orders passed. But that is not the case base. That being so. there is no bar for an application by them before the trial court under Order 9. Role 13. If they bad been served in the appeal. things would have been different. They could have put forward their case in appeal and got appropriate orders passed. But that is not the case base. That being so. there is no bar for an application by them before the trial court under Order 9. Role 13. to set aside the ex-parte decree against them." 9.M. P. Menon J. in Viswamhharan's case (supra) has followed the decision of a Division Bench of this Court in Chakkuvarkey's case (supra) in preference to the later decision is Ghandrika Amma's ones (supra). In Chakkuvarkey's case a certified copy o?. the decree. appealed against had been registered. and the decree holder had under Act. 166 of the Travancore Limitation Act 1100 a period of six years to execute the decree. An appeal against the decree was dismissed in limine without notice to the decree holder. The question for decision was whether the period of limitation for execution of the decree had been curtailed to three years for the reason of the dismissal of as appeal filed by the judgment debtor in limine. M. S. Menon J. (as be then was) on behalf of the Division Bench stated: "Aright of appeal or second appeal is not a natural or inherent right; it has to be conferred expressly by statutory provisions in that behalf and is circumscribed and controlled by the terms of those provisions. It is clear from Ss.100 and 101 that no second appeal is competent except on the grounds specified in S.100. and if the High Court refused to admit a second appeal on the ground that the requisite grounds do not exist. no question of a merger of the decree of the fust appellate court in a decree of the High Court can arise for consideration. It will be a curious result Indeed if the period of limitation available to the appellant has to be considered as curtailed by a second appeal of which he had no notice and which was dismissed as incompetent when it came up for admission." What difference does it make if the second appeal is dismissed after notice to the respondent? Will the dismissal after notice curtail the period of limitation available to the decree holder? No such question is posed or considered by the Division Beech. 10. In State of Madras v. Madura! Mills Co.. Will the dismissal after notice curtail the period of limitation available to the decree holder? No such question is posed or considered by the Division Beech. 10. In State of Madras v. Madura! Mills Co.. Ltd. (AIR 1967 SC 681) it is stated at p. 683: "But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there arc two orders. one by the inferior Tribunal and the other by a superior Tribunal. passed in the appeal or revision. there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion. the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction." A decree dismissing an appeal in limine without notice to the respondent cannot be said to be binding on him and the respondent is entitled to ignore the decree of which he had no notice. If the respondent is entitled to ignore the decree of the appellate court. it cannot be said that the decree of the subordinate court would merge in the decree of the appellate court so as to render the appellate decree binding on him. 11. In Viswambharan's case a decree for mandatory injunction for demolition of a hui was confirmed by the appellate court. A second appeal at the instance of the defendant was dismissed at the admission stage without issuing notice to the decree holder respondent. The decree holder filed an E P. for execution of the decree of the lower appellate court. The contention by the judgment debtor was that the decree of the appellate court had merged in the decree of the High Court dismissing the second appeal in limine and the decree of the High Court was the only effective decree capable of execution. On these facts M.P. Menon, J. was right in his view that the decree-holder is entitled to ignore the decree of which he had no notice and hence he could execute the decree of the lower appellate court that confirmed the decree of the trial court granting s mandatory injunction in favour of the decree holder. On these facts M.P. Menon, J. was right in his view that the decree-holder is entitled to ignore the decree of which he had no notice and hence he could execute the decree of the lower appellate court that confirmed the decree of the trial court granting s mandatory injunction in favour of the decree holder. But the strong dissent expressed by the learned judge against the decision of Viswanatha Iyer J. in Kunhiraman's case (supra) was not justified and cannot stand io the light of the decisions of the Supreme Court discussed above. The learned judge has not even adverted to the Full Bench decision of this Court in Haji Hassan Rowther's case referred to above. The decision in Chakkuvarkey's case (supra) can very well be sustaiued as the decree holder in that case had no notice of the decree dismissing the second appeal is limine, he was entitled to ignore the same. In that view of the matter the was no question of the period of limitation for execution of the decree provided under Art.166 of She Travancore Limitation Act. 1100 getting curtailed for the reason of the dismissal of the second appeal filed by the judgment debtor in limine without notice to the decree holder. 12. As held by the Supreme Court in Shankar Ramchandra Abhyankar v. Krishnaji Dettatraya Bapat (AIR 1970 SC 1) the revisional jurisdiction of the High Court is part of his general appellate jurisdiction and the dismissal of a revision in limine stands on the same footing as the dismissal of as appeal without notice to the respondent. The-respondent in such circumstances is entitled to ignore the order in revision of which he had 09 notice. In Chandrika Amma's case (supra) the question was whether a tenant of a building against whom there is an order for eviction under S.11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act is entitled to deposit the arrears of tent. interest and costs to get the order for eviction vacated under S.11(2)(c) of the Act within the period of time mentioned therein reckoned with reference to the date of dismissal of the revision in limine by the High Court. interest and costs to get the order for eviction vacated under S.11(2)(c) of the Act within the period of time mentioned therein reckoned with reference to the date of dismissal of the revision in limine by the High Court. la that case the landlord had filed a petition for eviction of the tenant from the building is his occupation under S.11(2)(b) of the Rent Control Act oa the ground that the tenant had kept the rent in arrears. The Rent Control Court allowed the petition granting three months' time to the tenant to pay the arrears under S.11(2)(c) of the Act. The tenant did not pay the arrears. but filed an appeal. The appeal was dismissed granting the tenant two months' time from the date of the appellate order for depositing the arrears of rent. The tenant did not deposit the arrears. but filed a revision petition before the District Court under S.20 of the Act. The District Court after hearing both parties dismissed the revision granting the tenant two months' time under S.11(2)(c) of the Act for payment of the arrears of rent. Without paying the arrears the tenant filed a revision petition before the High Court under S. US C.P.C. The revision was dismissed at the admision stags without issuing notice to the landlord. S.11(2)(c) of the Rent Control Act allows the tenant to deposit the arrears of rent within one month from the date of the order for eviction or within such further period of time that the Rent Control Court may in its discretion allow to enable the tenant to get the order for eviction vacated failure of the tenant to deposit the arrears of rent within the time allowed by the District Court in revision. the landlord gat an accrued right to evict the tenant in execution of the order of the District Court confirming the order for eviction passed in his favour by the two courts below. The landlord who had no notice of the revision dismissed is limine by the High Court was. on the principle discussed above. entitled to ignore the order dismissing the revision and proceed to execute the order for eviction. The landlord who had no notice of the revision dismissed is limine by the High Court was. on the principle discussed above. entitled to ignore the order dismissing the revision and proceed to execute the order for eviction. The Division Bench however took the view that the period of time provided for under S.11(2)(c) of the Rent Control Act can be reckoned wife effect from the date of the order dismissing the revision in liming by the High Court on the ground that the orders of the subordinate courts would get merged in the order dismissing the revision. The decision in Chakkuvarkey'a case was not brought to the notice of the Division Bench. Far the reason that the respondent decree holder in revision is entitled to ignore the order passed without notice to him. we are of the view that Chandrika Amma's case (supra) is not correctly decided. 13. M.P. Menon J. has declined to follow the later Division Bench decision in chandrika Amma's case and has dissented from the decision of Viswanatha Iyer J. in Kimhtraman'n case without even adverting to the Full Bench decision of this Court in Haji Hassan Rowther's case. Kalliath J. in his order of reference makes mention of the uncertainty in law if the principle of "restrictive distinguishing" is applied to get over a binding decision. The learned judge states: "But it foretells a peril. It makes the position of law more unsettled and uncertain. Even a modicum of certainty and calculability are lost. I do not want to say that there should be an excessive conservative adherence to the doctrine of precedents which would certainty tend to freeze the law. A Judge is free to innovate a restrictive formula to distinguish the decision and can find refinements and improvements on it. but if there are two conflicting decisions on the point by two Division Benches of the same Court. to it not decorous to see the point is settled by a larger bench to ensure stability of law." The Supreme Court in the decision reported in Mahadeolal v. Administrator General of West Bengal (AIR 1960 SC 936) states at p. 941: "Before we part with this appeal. however. it Is our duty to refer to one incidental matter. We have noticed with some regret that when the earlier decision of two judges of the same High Court in Deorajin's Case. however. it Is our duty to refer to one incidental matter. We have noticed with some regret that when the earlier decision of two judges of the same High Court in Deorajin's Case. 58 Cal WN 64: (AIR 1954 Cal 119). was cited before the learned judges who beard the present appeal they took on themselves to say that the previous decision was wrong. instead of following the usual procedure in case of difference of opinion with an earlier decision. of referring the question to a larger Bench. Judicial decorum co less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing. it is the quality of certainty. That quality would totally disappear if judges of co-ordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench. and holding the view that the earlier decision is wrong. itself gives effect to that view the result would be utter confusion. The position would be equally bad where a judge sitting singly in the High Court is of opinion that the previous decision of another single judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not knew bow to advise their clients and all courts subordinate to the High Court would find themselves in an embarassing position of having to choose between dissentient judgments of their own High Court. (20) As far as we are aware it is the uniform practice in all the High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench. a reference is made to a larger Bench. In Calcutta High Court a rule to this effect has been in existence since 1867. It is unfortunate that the attention of the learned judges was cot drawn in the present case to that rule. But quite apart from any rule. a reference is made to a larger Bench. In Calcutta High Court a rule to this effect has been in existence since 1867. It is unfortunate that the attention of the learned judges was cot drawn in the present case to that rule. But quite apart from any rule. considerations of judicial propriety and decorum ought never to be ignored by courts in such matters." The same view is expressed in Jaisri v. Rajdewan (AIR 1962 SC 83) wherein it is stated at p. 87: "When a Bench of the High Court gives a decision on a question of law. it should in general be followed by other Benches unless they have reasons to differ from it. in which case the proper course to adopt would be to refer the question foe the decision of a Full Bench." It is further stated at p. 88: "Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions. and it is therefore desirable that in case of difference of opinion. the question should be authoritatively settled." 14. as stated by Subba Rao C. J. in Ramanna's case (AIR 1958 AP 768) and by the Supreme Court in Kewal Ram's case ((1987) 2 SCC 344) a decree passed without notice to the respondent will not be binding on him. The ultimate decision in Chakkuvarkey's case (supra) could very well be sustained ob that principle. But we find it difficult to accept the preposition that there is re decree when an appeal is dismissed in limine ac-d such a dismissal is of no consequence. 15. In the present case there was a delay of 3 days in presenting the appeal before the lower appellate court. The cause of tee delay is explained in the affidavit is support of the petition for condensation of delay as on account of the appellant's illness. The appellant was examined as P.W.I. There is to evidence contra against the case proved by P. W.1. We therefore find that there was sufficient reason for the delay in presenting the appeal before the lower appellate court. We therefore allow I. A. No. 758/1980 and condone the delay in filing the appeal. 16. we are aware shat this case can be disposed of without deciding the legal effect of the dismissal of an appeal in limine. We therefore find that there was sufficient reason for the delay in presenting the appeal before the lower appellate court. We therefore allow I. A. No. 758/1980 and condone the delay in filing the appeal. 16. we are aware shat this case can be disposed of without deciding the legal effect of the dismissal of an appeal in limine. But the question does arise on the order of reference of this and a similar case to the Full Bench by Kalliath J. doubling the correctness of the decision of M. P. Menon J. in Viswambharan's case. which related to the dismissal of a second appeal in limine. One of us (P. C. Balakrishna Menon J.) is a party to the decision in Chandrika Amma's case. and when the mistake in that decision is fully brought out and highlighted by elaborate arguments by counsel. we felt it is our plain duty to correct the mistake. 17. Since the lower appellate court has not considered the case on merits. we set aside the judgment and decree of the court below and remand the case to that court for fresh disposal of the appeal on merits and in accordance with law. The parties will appear before the court below on 23-11-1987. The second appeal is allowed as indicated above. There will be no order as to costs. Sukumaran J. - I am in agreement with my learned brethren regarding the ultimate conclusion on the specific point on which the case has come up for decision before the Full Bench; however. with great respect. I am unable to associate myself with the views expressed on a side issue. which. according to me. does not arise at all in the present case. This mixed stand necessitates an explanatory exercise. 2 It is desirable. at the outset. to allude to the skeletal facts leading to the reference of the case to the Full Bench. 3. A suit for injunction instituted in the year 1978 was dismissed by the trial court. There was an appeal. It was belated. A petition for condoning the delay was dismissed. That entailed the dismissal of the appeal too. The second appeal was directed against the decision of the appellate court. 4.The very maintainability of the second appeal was questioned by the respondents. The contention was that when an appeal is disposed of as time barred. There was an appeal. It was belated. A petition for condoning the delay was dismissed. That entailed the dismissal of the appeal too. The second appeal was directed against the decision of the appellate court. 4.The very maintainability of the second appeal was questioned by the respondents. The contention was that when an appeal is disposed of as time barred. consequent cc the rejection of the application for condonation of delay in preferring the appeal. there is no decree. and that consequently. no appeal is maintainable. 5.A similar contention had been raised in S.A. 718/84. Kalliath J. noticing the cleavage of judicial views among the decisions of this Court. referred the question for consideration by a Larger Bench. The Division Beech. before which the question came up. thought that an authoritative decision of the Full Beech is necessary. S.A. 718/84 thus came up before the Full Beech. The same question was involved in the present case. This case too was therefore posted before. end heard by. the Full Bench. 6. Kallith J. took the view that an order dismissing the appeal as time barred is one passed in appeal. (See paragraph 16 in the order of reference ). Referring to an earlier Full Bench in Kuruvilla v. Rajagopala Iyer, 1966 K.L.T. 916 and the observation therein. Kalliath J. observed: "It implicitly supports the view that a second appeal is entertainable in a case where an appeal is disposed of when the application to condone the delay is dismissed." The position. according to me. is cow beyond controversy. Of direct relevance are the decisions of the Supreme Court in Raja Kulkarni v. The State of Bombay. AIR 1954 S.C. 73. and Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332. Although in the context of an appeal under the Income Tax Act. similar principle has been laid down by the Supreme Court in Mela Ram & Sons v I.T. Commissioner. AIR 1956 SC 367. In the context of the provisions of the Co-operative Societies Act. a Division Bench of this Court held that a decision in appeal presented before the Co-operative Tribunal beyond the prescribed time and dismissed as time barred. would constitute the decision in the appeal itself. (See Thankappan v. Trivandrum Dt. Co-operative Bank Ltd.. 1986 K.L.T. 263). 7. The majority judgment. after adverting to Sheodan Singh's case supra. a Division Bench of this Court held that a decision in appeal presented before the Co-operative Tribunal beyond the prescribed time and dismissed as time barred. would constitute the decision in the appeal itself. (See Thankappan v. Trivandrum Dt. Co-operative Bank Ltd.. 1986 K.L.T. 263). 7. The majority judgment. after adverting to Sheodan Singh's case supra. observed: "Dismissal of an appeal on the ground of limitation was thus held as amounting to a confirmation of the decree of the trial court on the merits of the case and the decision of the appellate court is held to be res judicata on the question of title raised in the connected appeal. This decision of the Supreme Court would clearly indicate that the decree of the trial court gets merged in the appellate court's decree even when the appeal is dismissed on a preliminary ground or as lime-barred." 8. I am in agreement with the above conclusion. That would dispose of the question which actually arises in the second appeal. 9. I may refer to some aspects of the judgment of M.P. Menon, J. which have not been. according to me. highlighted in the majority judgment. 10. M.P. Menon, J. stated in paragraph 3 of the judgment that the legal position had been settled by Division Beach of this Court in Chakkuvarkey's case. A.I.R.1962 Ker.104 and that the decision in Chandrika Amma's case 1984 K.L.T. 677 was in conflict with that decision. This is an over-simplification of the legal situation. and one ignoring the developments in law during the more than two decades of intervening period. The Division Bench in AIR 1962 Ker.104 dealt with a special situation arising out of the special provisions of the Travancore Civil Procedure Code under which a decree was compulsorily registrable by the authorities under the Registration act. and a decree-holder whose decree had been so registered has an elongated period to set in execution proceedings. That way. the decree-bolder had a vested and valuable tight. The judicial thoughts of the Supreme Court available even at that time. had not bees placed before that Division Bench which decided Chakkuvarkey's case. The subsequent pronouncement of the Supreme Court in Sheodan Singh v. Daryao Kunwar. AIR 1966 S. C. 1332. would have dispelled any possible doubt on the preposition. Unfortunately. however. M. P. Menon J. missed that decision. The judicial thoughts of the Supreme Court available even at that time. had not bees placed before that Division Bench which decided Chakkuvarkey's case. The subsequent pronouncement of the Supreme Court in Sheodan Singh v. Daryao Kunwar. AIR 1966 S. C. 1332. would have dispelled any possible doubt on the preposition. Unfortunately. however. M. P. Menon J. missed that decision. at obviously that had not been placed before the learned judge. 11.M. P. Menon J. has analysed the statutory provisions in paragraph 5 to 10 of his judgment. and expressed his view on the effect of those provisions in paragraph 11. There have been incisive analysis of these provisions on anterior occasions. starting from 1885. if not earlier. (See Ganga Dass Dey v. Ramjoy Dey. (1885) ILR 12 Cal 30 and also Rakhal Chandra Gosh v. ashuthosh Gosh. 17 Cal. W.N. 807.) The Supreme Court also has now pronounced of. that aspect That pronouncement is law under Art.141 of the Constitution. The majority judgment has dealt with exhaustively on the unsoundness of the conclusion come to by M. P. Menon. J. 11 is. therefore. unnecessary to cover the ground over again 00 that aspect. The amendment of the Civil Procedure Code effected under Act 104 of 1976. has been projected back by M. P. Menon J. to understand provisions which were already there for over a century. With great respect. this is and a proper interpretative technique. A clumsy amendment cannot give helpful clue to understood pre-existing statutory provisions which have received interpretation or very many earlier occasions. 12. M. P. Menon. J. has placed reliance on the decision of the Madras High Court in In re N. Kayambu Filial. AIR. 1941 Madras 836 and the decision in Phaltan Bank v. Baburao. AIR. 1954 Bombay 43. In support of the conclusion. and in paragraph 18. the learned judge posed the question: "Cannot the same things be said about in limine dismissal of a second appeal. The answer has been given by the Supreme Court: an emphatic No. in situations similar to those arising in the present case. M. P. Menon. J. felt that Justice G. Viswanatha Iyer erred in his conclusion in Kunhiraman v. Rossy.1979 K.L.T. 718. and surmised that Rule 3A of the amended provisions in C.P.C. might have escaped notice when that case was decided. M. P. Menon. J. felt that Justice G. Viswanatha Iyer erred in his conclusion in Kunhiraman v. Rossy.1979 K.L.T. 718. and surmised that Rule 3A of the amended provisions in C.P.C. might have escaped notice when that case was decided. It is difficult to assume that Viswanatha Iyer J. missed Rule 3 A of Order XLI. when Rule 1A introduced by the very same amendment had been pointedly noted by the learned judge. a judge whose intimate familiarity with the provisions of the C.P.C. had been acknowledged by M. P. Menon. J. himself. 13. M. P. Menon. J. referred to some of the decisions of the other High Courts in support of his view. Such were the cases of the Calcutta High Court in Mamuda v. Khateen. A.I.R.1976 Cal. 415. Padmalaya v. Syam Sunder. AIR. 1980 Orissa 1. and CMttu v. Mathuralal. AIR. 1981 MP. 13. These decisions only demonstrate how Courts working under great pressure. are unable to trace even binding decisions of the Supreme Court and of the self-same High Court in the absence of effective assistance from counsel. Such was the position is AIR. 1976 Cal. 415 supra where there was no representation at all on behalf of the respondent. The decision does not make any reference to any of the Supreme Court decisions discussed earlier or the earlier decision rendered by that Court in Ganga Dass Dey v. Ramjoy Dey. (1885) ILR 12 Calcutta 30. The Division Bench in Orissa High Court. to which R. N. Mlsra J. (as ha then was) was a party had taken a different view on the question. (See Krishna Stores v. Commr. of Sales Tax. Orissa. (1979)43 STC. 64.) This decision rendered on 28-4-1977 was. however. not bought to the notice of R. N. Misra. J. when he decided on 21-8-1979. the case Padmalaya v. Syam Sunder. AIR. 1980 Orissa 1 supra. No reference was made is that decision to the relevant decisions of the Supreme Court. In AIR. 1981 M. P.13 supra also. there was no reference to the binding decisions of the Supreme Court. That Court too worked back from Rule 3A of Order XLI C.P.C. for coming to its conclusion. There is one more decision of the Orissa High Court taking the same view. though omitted to be noticed by M.P. Menon. J.. Ainthu Charon Parlda v. Sitaram Jayanarayan Firm. AIR. 1984 Orissa 230. That Court too worked back from Rule 3A of Order XLI C.P.C. for coming to its conclusion. There is one more decision of the Orissa High Court taking the same view. though omitted to be noticed by M.P. Menon. J.. Ainthu Charon Parlda v. Sitaram Jayanarayan Firm. AIR. 1984 Orissa 230. That decision too did not refer to the Supreme Court decision on the point or even to the earlier Division Bench decision in 43 S.T.C. 64 supra. The Full Bench was substantially influenced by the decision in AIR. 1976 Cal. 415 supra. and the provisions brought in by the 1976 amendment of the Civil Procedure Cede. 14. M. P. Menon J. even while making reference to very many decisions of the High Courts. missed some curcial and binding decisions of the Supreme Court on the point. Even the Division Bench decision of this Court had not been brought to the notice of the learned Judge. While reference is made in that judgment to the observations of many judges. equally strong observations and strong decisions on the same point. had been missed in that judgment. Ganga Dass Dey's case of 1885. (1885) ILR. 12. Cal 30 and Ainthu Charon Parida's case of 1984 in AIR 1984 Orissa 230 and many others is the queue are illustrative of the decisions so missed by the learned Judge. This is demonstrated in the detailed order of Kalliath J. where better assistance is the exposition of law had been available and was unreservedly acknowledged by that judge. 15. The majority judgement has indicated the inappropriateness in chasing separate paths even while institutionalised highways are available. The observations of Justice. Cardozo appear to be apposite ib this context: "The labour of judges would be increased almost to the breaking point if every pact decision could be reopened in every case. and one could not lay one's own course of bricks on the secure foundation of She course laid by others who bad gone before him." (See 427 U.S. at 190.) 16. The majority judgment. however. has further proceeded to consider the correctness c-f a Division Bench decision in Chandrika Amma v. Mohammed. 1984 K.L.T 677. rendered by P.C. Balakrishna Merion & K. John Mathew. JJ. The correctness of that decision is not before the Full Bench. That case dealt with the effect of a dismissal in limine of a revision under S.115. however. has further proceeded to consider the correctness c-f a Division Bench decision in Chandrika Amma v. Mohammed. 1984 K.L.T 677. rendered by P.C. Balakrishna Merion & K. John Mathew. JJ. The correctness of that decision is not before the Full Bench. That case dealt with the effect of a dismissal in limine of a revision under S.115. Such is net ib, present case. As Loted earlier. the appeal before the court below was dismissed not in limine. It was dismissed only because the application for condoning g the delay had been dismissed. The petition for condonation of delay was dismissed. only after hearing both the parties. According to me. it is unnecessary to canvass the correctness of the Division Beech decision in Chandrika Amma's case supra. With greet respect. I feel that an obese treatise ce & point that does not arise. will only result in added confusion and net a needed clarity. 17. The majority judgment observes in paragraph 10: "A decree dismissing an appeal in limine without notice to the respondent cannot be said to be binding on him and the respondent is entitled to ignore the decree of which he had no notice. If the respondent is entitled to ignore the decree of the appellate court. ii cannot be said that the decree of the subordinate court would merge In the decree of the appellate court so as to render the appellate decree binding on him." 18. The substantial reason as contained in paragraph 12 for disclaiming the view in Chandrika Amma's case is stated as follows: "The decision in Chakkuvarkey's case was not brought to the notice of the Division Bench. For the reason that the respondent decree-holder in revision is entitled to ignore the order passed without notice to him. we are of the view that Chandrika Amma's case (supra) is not correctly decided." 19. With great respect. I find it difficult. either on principle or on precede si to subscribe to the above view. The majority judgment would equate a decree dismissing an appeal in limine as a virtual nullity. Such a view. I apprehend. is inconsistent with the very conclusion reached by the majority in the present case. 20. Absence of a notice to the respondent appears to be the basic reason for the majority to hold that there is no binding decree by the appellate court. If that be so. Such a view. I apprehend. is inconsistent with the very conclusion reached by the majority in the present case. 20. Absence of a notice to the respondent appears to be the basic reason for the majority to hold that there is no binding decree by the appellate court. If that be so. the situation would be the same io relation to an appeal dismissed without notice to the respondent. although the reason for such dismissal was a rejection of the petition for condonation of delay. Could not the respondent say. qua the appeal. he bad no notice? 21. That facet of the principles of natural justice relating to the affording of an opportunity of being heard even in administrative matters was developed in India soon after the 1960s. Dr. Binapani Die's case AIR 1967 S.C.1269 is an important landmark in that area. It must. however. be noted that in that cms the obligation to issue notice was posited only in a situation where adverse civil consequences visited the affected party. as a result of the order passed or decision taken. 22. It is equally well-settled now that it will be open to the Statute to exclude. in given situations. this requirement of natural justice. (See Maneka Gandhi v. Union of India. A.I.R.1978 S.C. 597). 23. Order XLI Rule 11. empowers the appellate court to dismiss an appeal without serving notice on the respondent or his pleader. A clear case of statutory dispensation of notice to the respondent is thus established. in the particular situation. When as appellate court acts in the exercise of such a power. its actions will certainly have effect and impact in the same measure a decision rendered after full hearing and with notice to the parties. has. A dismissal of an appeal is limine could not ordinarily have an adverse impact on the rights of the respondent in the appeal so dismissed. Na rights of his are injuriously affected. ordinarily. in much situations. (An extraordinary situation is the one referred to in the decision dealt with by this Court in Chakkuvarkey's case. A.I.R.1962 Ker.104.) 24. A notice to the respondent in relation to an appeal or other proceeding is a statutory encapsulation of a salutary principle of natural justice. That requirement is in the realm of procedure. A procedural failure may give the affected party. reliefs against the resultant injustice. That. however. A.I.R.1962 Ker.104.) 24. A notice to the respondent in relation to an appeal or other proceeding is a statutory encapsulation of a salutary principle of natural justice. That requirement is in the realm of procedure. A procedural failure may give the affected party. reliefs against the resultant injustice. That. however. does not annul the decision or decree of the court. Even when many such requirements ace statutorily incorporated. the violation thereof does not render the decree one without jurisdiction. A distinction exists in clear terms. Such. for example. is the case when the court omits to discharge its statutory duly to consider the question of limitation obligated under S.3 of the Limitation Act. That is what the Supreme Court said in that context: "Bat it is well settled that a court having jurisdiction over the subject of the suit and over the parties thereto. though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject matter and H had the jurisdiction over the party and. therefore. merely because it made an error in deciding a vital issue in the suit. it cannot be said that it has acted beyond its jurisdiction. As has of the been said. courts have jurisdiction to decide right or to decide wrong and eventhough they decide wrong. the decrees rendered by them cannot be treated as nullities." (See Meqbul Ahmad v. Onkar Pratap Narain Singh. AIR 1935 P. C. 85) Similar was a case when a condition in another important provision of the Civil Procedure Code. Order 32 Rule 7(1) (which was characterised as a mandatory provision). was overlooked by the court. Even in such a situation. the decree would not be a nullity. The Supreme Court observed: "A non-observance of the condition laid down in Order 32 Rule 7(1) does not make the decree void for it does not affect the jurisdiction of the court at all." (See Kaushalya Devi v. Baijnath. AIR 1961 S.C. 790). There are observations supporting the strand of reasoning: (See Kunheema Umma v. P. Balakrishnan. AIR 1967 Kerala 97 and Kunjan v. Janaki.1980 KLT 796.) 25. A violation of the principles of natural justice may not necessarily render a decision a nullify. AIR 1961 S.C. 790). There are observations supporting the strand of reasoning: (See Kunheema Umma v. P. Balakrishnan. AIR 1967 Kerala 97 and Kunjan v. Janaki.1980 KLT 796.) 25. A violation of the principles of natural justice may not necessarily render a decision a nullify. It is unnecessary to refer to the large number of decisions where judicial observations having a bearing on this question occur. To my mind. the principle is forcefully brought out by a recent decision of the Privy Council. Lord Diplock said: "Their Lordships would. however. take this opportunity to point out that in relation to order of a court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that are 'void' in the sense that they can be ignored with impunity by those persons to whom they are addressed. and orders that are 'voidable' and may be enforced unless and until they are set aside. Dicta that refer to ?be possibility of there being such a distinction between orders to which the descriptions 'void' and 'voidable' respectively have been applied can be found in the opinions given by the Judicial Committee of the Privy Council in Marsh v. Marsh (1945) AC 271 a» 284 and Mac Foy v. United Africa Co. Ltd. (1961) 3 All ER. 1169. (1962) AC 152; but in neither of those appeals nor in any other case to which counsel has been able «o refer their Lordships has any order of a court of unlimited jurisdiction been held to fall is a category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceedings to have them set aside. The cases that are referred to is these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind: what they do support is the quite different proposition that there Is a category of orders of such a court which a person affected by the order is entitled Jo apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity and give to the judge a discretion as to the order he will make. The judges in the cases that have drawn the distinction between the two types of orders have cautiously refrained from seeking to lay down a comprehensive definition of defects that attracts ex debito limit the right to have i) set aside. save that specifically it includes orders that have been obtained in breach of rules of natural justice. The contrasting legal concepts of voidness and voidability form part of the English law of contract. They are inapplicable to order made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it oa application to that court; if it is regular It can only be set aside by an appellate court on appeal if there is one to which an appeal lies." (See Isaacs v. Robertson. (1984) 3 All E. R.140) 26. Will the decision of a superior court dismissing an appeal or a revision in limine be an exercise is futility? I have no doubt that it cannot be treated so. It is unimaginable that this Court. while exercising powers under Order 42 Rule 11. is turning out very many barren orders for the only reason that notice had not been issued in a frivolous appeal or a meritless revision. If a different view is taken. the result may even be disastrous. If a decision in such a situation is virtually a nullity. cannot the exercise of moving the appeal or a revision be repeated over again? Logically. it must be so possible. for. in limine dismissal is. according to the majority. something non est. When such strange circumstances appear. courts will do well to pause and ponder over the matter. It was Lindky L.J. who counselled this course with excruciating clarity. After posing the strange consequences arising out of certain startling arguments. the learned Law Lord observed: "It appears to me that these consequences show that there is some flaw in the argument. If by logical reasoning from the premises conclusions are arrived at which are opposed to good sense. it is necessary to go back and look at the premises and see if they are sound-..." (See Lister v. Stubbs. (1890) 45 Ch D. 1.) 27. The decision in Keval Ram v. Ram Lubhal. If by logical reasoning from the premises conclusions are arrived at which are opposed to good sense. it is necessary to go back and look at the premises and see if they are sound-..." (See Lister v. Stubbs. (1890) 45 Ch D. 1.) 27. The decision in Keval Ram v. Ram Lubhal. (1987) 2 SCC 344 is rendered in an entirely different situation. The Court was concerned with proceedings under Order IX Rule 13. The general observations have to be understood in the proper perspective. 28. No doubt judicial discipline would require implicit obedience to the law as laid down by the decision of the Supreme Court. That is essential for sustaining our judicial system. Lord Dip kick explained the necessity for such judicial discipline thus: "It is inevitable in a hierarchical system of Courts that there are decisions of the Supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary. When I sat in the Court of Appeal I sometimes thought the House of Lords was wrong in overruling ma. Ever since that time there have been occasions. when alone or in company. I have dissented from a decision of the majority of this House. But the judicial system only works if someone is allowed to have the last word and if that last word. once spoken. is loyally accepted." (See Cassell & Co. Ltd.. v. Broome. (1972) 1 All ER 801 at page 874.) However. as the Supreme Court itself has pointed out on occasions time out of number. a decision has to be understood in the background of the actual issue which was in controversy and which earns up for adjudication before the court. Judicial discipline should not be equated with intellectual slavery. 29. High Courts. (or Courts of Appeal in England) have quite often. resorted to the distinguishing techniques. to avoid a collision course. and to reach the shore of justice. Lord Diplock has pointed out some distressing results of the indulgence in sash exercises. In Chttern D.C. v. Hodgetts. (1983) 1 All ER 1057 at 1059 he said: "As is not un common with decision which came practical difficulty. attempts. often unsatisfactory. are subsequently made to distinguish them. As a result fine distinctions are drawn and the law becomes uncertain and even obscure." 30. In Chttern D.C. v. Hodgetts. (1983) 1 All ER 1057 at 1059 he said: "As is not un common with decision which came practical difficulty. attempts. often unsatisfactory. are subsequently made to distinguish them. As a result fine distinctions are drawn and the law becomes uncertain and even obscure." 30. I am of the view that Keval Ram's case does not demand laying down a proposition that an appellate judgement rendered with full statutory support of Order XLI Rule 11 should be treated as a nugatory determination. 31. Kalliath J. felt it necessary to make a reference so that there may be some relief for the courts which gat enmeshed is a net of procedural confusion. Tills Fall Bench has endeavoured to smash that mash. I am. however. apprehensive whether is that process the Courts have not gat into knottier meshes. And in one salsa. the situation need not generate any consternation. For. "Ere the first so war flung the seed that tied man to the soil Or ever roofs stuffed with thatch or pots ware set to boil Ere the first weaver stretched his warp or brouzsmith forged a chain Man meshed himself with cobwebs spun from his itching brain." (Lines quoted by Robert Latham in: 'In Quest of Civilisation') 32. It is unnecessary at this stage and in this case to express a final view on Chandrika Amma's case. Inasmuch as pointed arguments had not been. according to me. addressed on that aspect. it may even be inappropriate to express final views thereon. particularly when the decision is one rendered by a Division Bench and when that decision has much of anterior judicial opinion to buttress its conclusion. With teat part of the judgment of the majority. I. respectfully but strongly dissect.