Judgment :- 1. Parties in these proceedings will be referred to according to their rank before the trial court. 2. O.S. No. 1320 of 1980 was filed by the respondents in the Second Appeal, for recovery of possession after terminating the lease. The property belonged to a temple, over which, the plaintiffs have got a leasehold right. The same is sub-leased to the defendant/appellant in the Second Appeal. The suit was filed, after terminating the tenancy. 3. In the written statement filed by the defendant, she claimed only the benefit of the Tamil Nadu City Tenants Protection Act (hereinafter referred to as CTP Act). The defendant said that under S. 9, she is entitled to purchase the right of the landlord, since she has put up the superstructure over the same. 4. On the above pleadings, the parties went to trial. The trial court, as per the judgment dated 23.9.1983, dismissed the suit. It also came to the conclusion that the defendant is also not entitled to the benefits of CTP Act. 5. The plaintiffs preferred A.S. No. 748 of 1985. The defendant also wanted to file an appeal against the dismissal of her application under S. 9 of the CTP Act, as an appeal is provided under that Act. By the time she preferred an appeal as C.M.A., there was already a delay of 892 days and she filed an application for condonation of the delay as C.M.P. No. 1138 of 1986 in Unnumbered C.M.A. S.R. No. 2638. The lower appellate court dismissed that application refusing to condone the delay of 892 days in filing the C.M.A. S.R. No. 2638. Against the dismissal of C.M.P. No. 1138 of 1986, a revision was taken to this Court in C.R.P. S.R. No. 67811 of 1987. As there was also a delay in filing the C.R.P. S.R. No. 67811 of 1987, C.M.P. No. 7590 of 1988 was filed and that petition as well as the C.R.P. S.R. No. 67811 of 1987 were dismissed by this Court on 24.11.1988. Since the petition to condone the delay in preferring the C.M.A. was dismissed, the Unnumbered C.M.A. S.R. No. 2638 of 1986 was also rejected. 6. A.S. No. 748 of 1985 was heard and the appeal was allowed. Since the petition to condone the delay in preferring the C.M.A. was dismissed, the Unnumbered C.M.A. S.R. No. 2638 of 1986 was also rejected. 6. A.S. No. 748 of 1985 was heard and the appeal was allowed. The lower appellate court held that since the defendant is not entitled to claim the benefits of S. 9 of CTP Act, there is no impediment in granting relief for recovery of possession of the property. It is against the decree and judgment of the lower appellate court, the defendant has filed S.A. No. 212 of 1988. Plaintiffs have preferred Cross Objection No. 8 of 1995 with respect to the ownership of superstructure in the suit property. 7. After the disposal of A.S. No. 748 of 1985, the defendant seems to have filed an application to restore her copy application, so as to enable her to file an appeal against the judgment disallowing the benefits of S. 9, CTP Act to her. That application was dismissed by the trial court. The matter was taken in revision before this Court. This Court allowed the revision and restored the copy application to file. After restoration of the copy application, the defendant obtained a certified copy of the order in I.A. No. 19122 of 1980 once again and preferred C.M.A. No. 156 of 1989. That C.M.A. was heard long after the judgment in A.S. No. 748 of 1985. C.M.A. No. 156 of 1989 was allowed and the defendant was allowed to purchase the site. Against the judgment in C.M.A. No. 156 of 1989, the plaintiffs have preferred C.R.P. No. 2618 of 1990. 8. In the Second Appeal, the following substantial questions of law have been raised. 1. Whether the suit or appeal is maintainable when the statement in the plaint as well as in the appeal grounds, clearly says that the plaintiffs are the owners of the super-structure and land? 2. Whether by virtue of G.O. 2000, recovery of possession of the suit property can be claimed in City Civil Court, as the jurisdiction of the Rent Controller is ousted even though the suit is filed by the plaintiffs against the defendant in respect of a hut which does not belong to any public religious institution? 9. 2. Whether by virtue of G.O. 2000, recovery of possession of the suit property can be claimed in City Civil Court, as the jurisdiction of the Rent Controller is ousted even though the suit is filed by the plaintiffs against the defendant in respect of a hut which does not belong to any public religious institution? 9. When the Civil Revision Petition came up for arguments, counsel on both sides submitted that since the Second Appeal also arises out of the same proceedings, the same also has to be heard along with the Civil Revision Petition. That is how the Second Appeal also came up for arguments before me, even though the judgments in the two proceedings are different. Both counsel submitted that the decision in the Civil Revision Petition will conclude the matter. If the C.R.P. is allowed, the Second Appeal has naturally to be dismissed. If the judgment in C.M.A. No. 156 of 1989 is allowed to stand, naturally the Second Appeal will also have to be allowed. 10. In the revisional grounds, the plaintiffs attacked the judgment in C.M.A. No. 156 of 1989 mainly for one reason, i.e. the defendant herself had preferred an appeal against the order disallowing the benefit under S. 9 of the CTP Act, along with an application to condone the delay, which was dismissed. Consequently, C.M.A. was rejected. Once the delay is not condoned, the appeal also had to be rejected. Even though the rejection of the appeal was on the ground of delay, the defendant had availed the opportunity of filing a revision against that dismissal and the same also having been dismissed, she cannot again file another appeal against the very same order, after obtaining another certified copy of the same order. Counsel submitted that once an appeal is dismissed, whatever be the reason, that decision concludes the rights of the parties and a subsequent filing of another C.M.A. is barred by the principle of res judicata . Counsel further submitted that the order disallowing the claim of the defendant under S. 9 of the CTP Act had merged with the judgment and order, when the application to condone the delay was dismissed, and consequently, the appeal was also rejected. Counsel further submitted that the order disallowing the claim of the defendant under S. 9 of the CTP Act had merged with the judgment and order, when the application to condone the delay was dismissed, and consequently, the appeal was also rejected. It is further submitted by counsel that in the Second Appeal filed by the defendant, no substantial question of law is taken claiming the benefits under S. 9 of the CTP Act. Therefore, when there is no substantial question of law raised in the Second Appeal in that regard, she must be deemed to have waived the benefits of S. 9 of the CTP Act. Counsel, therefore, submitted that the entertainment of C.M.A. No. 156 of 1989 and allowing the same by the lower appellate court was illegal and the same was without jurisdiction. A patent illegality has been committed by the lower appellate court and the same is to be revised. 11. As against the said contention, counsel for the defendant submitted that the benefits of S. 9, CTP Act, can be claimed at any time. He further submitted that the dismissal of the petition for condonation of delay, will not debar her from preferring or entertaining another appeal. This question can be gone into independent of the appeal. It is further submitted by him that when an appeal is dismissed on the ground of delay, it is only that petition that is dismissed and the appellant is not prevented from preferring another appeal. His contention is that when the delay is not condoned, in the eye of law, there is no appeal at all. He must be deemed not to have preferred an appeal and there cannot be a merger or the principle of res judicata applying to this case. 12. Various decisions have been cited on either side to support their arguments and reference will be made to each and every one of the decisions cited in the course of this judgment. But the admitted facts are that the appeal memorandum was presented with a petition for condonation of delay. Delay was not condoned. Consequently, C.M.A. S.R. was rejected. Thereafter, with another certified copy obtained later on, another C.M.A. was filed; in which there was no delay. That C.M.A. was entertained and her claim under S. 9 was allowed. But the admitted facts are that the appeal memorandum was presented with a petition for condonation of delay. Delay was not condoned. Consequently, C.M.A. S.R. was rejected. Thereafter, with another certified copy obtained later on, another C.M.A. was filed; in which there was no delay. That C.M.A. was entertained and her claim under S. 9 was allowed. The question is, whether the defendant is entitled to file another appeal, when her earlier appeal was dismissed on the question of delay. What is the effect of earlier dismissal order and whether that concludes the rights of parties, is to be considered. 13. To consider the same, the following provisions of law have to be taken into consideration. S. 3 of the Limitation Act, 1963, says: “(1) Subject to the provisions contained in Ss. 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence”. (sub-S. (2) omitted). A reading of S. 3 makes it clear that it is a mandatory provision that any appeal preferred after the period of limitation shall be dismissed, unless grounds have been made out to condone the delay. If the delay is not condoned, it is not only the petition to condone delay that is dismissed, but also the appeal which is filed along with the same. S. 5 of the Limitation Act, 1963 provides for entertainment of any appeal or any application after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. So, if S. 5 petition is dismissed, as a consequence the mandate under S. 3 has to follow. 14. Along with these provisions, the court will also have to consider the provisions of Order 12, Rule 3-A of the Code of Civil Procedure. Rule 3-A was incorporated in the statute book by virtue of the amendment to the Code under Act 104 of 1976. It reads thus: “O. 12. R. (3-A) (1). When an appeal is presented after the expiry of the period of limitation specified therefore 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. It reads thus: “O. 12. R. (3-A) (1). When an appeal is presented after the expiry of the period of limitation specified therefore 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. (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”. The reason for incorporating Rule 3-A to Order 12 of the Code, was on the basis of the 14th and 27th Reports of the Law Commission. [Sentence substituted: 5-12-1996] “Even before the 14th Law Commission Report, necessary amendment was made to the Code of Civil Procedure in the State of Tamil Nadu, even in the year 1921, on the basis of the decision reported in AIR 1917 PC. 179 = (1918) 7 L.W. 156) (Krishnaswami Pani Kondar v. Ramaswami Chettiar )”. But various High Courts did not incorporate that amendment which necessitated the 27th Report. On the basis of that, Rule 3-A was incorporated. In the 27th Report, the Law Commission said: “In the Fourteenth Report, attention was drawn to the practice which was previously followed of admitting an appeal subject to objections as to limitation being raised at the time of hearing when 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 que stion of limitation affecting the competence of the appeal. 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 que stion 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. 41, R. 1(3) with verbal modifications. The Bombay amendment is contained in O. 41, R. 3-A (Bombay)”. It is pursuant to the said recommendation of the Law Commission, Rule. 3-A was incorporated in Order 41 of the Code. 15. The main stress of counsel for the defendant is also based on R. 3-A. In sub-rule (3) of R. 3-A to O. 41, there is a direction that a court shall not make an order for the stay of execution of the decree against which an appeal is proposed to be filed, “so long as the court does not, after hearing under R. 11, decide to hear the appeal. The argument of counsel is that unless the application to condone the delay is allowed, there is no appeal. Counsel submitted that in view of the wording, in sub-rule (3), there is no appeal before the court and the application is only to seek permission of that court to prefer the appeal after condonation of the delay. The argument seems to be attractive; but most of the decided cases are against the said contention raised by counsel for the defendant. 16. The word ‘appeal’ is not defined under the Code of Civil Procedure. In P. Ramanatha Aiyars The Law Lexicon, Reprint Edition, 1987, ‘appeal’ is defined as a right of entering a superior court and invoking its aid and interposition to redress the error of the court below. It is further defined therein, as a “proceeding taken to rectify an erroneous decision of a court by submitting the question to the higher court or court of appeal and its aid that the term, therefore, includes in addition to the proceedings specifically so called, the cases stated in the opinion of the Queens Bench Division and the Court of Crown Cases reserved and proceedings in error”. 17. In Nagendra Nath. 17. In Nagendra Nath. v. Suresh (AIR 1932 PC 165 = 36 L.W. 7), their Lordships said: ‘There is no definition of appeal in the Code of Civil Procedure. But, there is no doubt that any application by a party to an appellate court asking it to set aside or revise a decision of the subordinate court, is an appeal within the ordinary acceptation of the term and that it is not less than an appeal because it is irregular or incompetent’. In Raja Kulkarni. v. State of Bombay ( AIR 1954 SC 73 ), it is defined as, ‘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 heard. But there is nothing to prevent a party from filing an appeal, which may ultimately be ‘found to be incompetent’. That was a case, where proceedings were initiated against a workman, for going on strike during the pendency of appeal before the Appellate Tribunal, and if there is any strike or lock out and work is suspended, the same is declared as illegal. If during the pendency of such an appeal, any person instigates or incites others to take part in the strike, he is liable for punishment. In the case, before their Lordships, an appeal was pending before the Tribunal, but the appeal was incompetent. The question was whether, instigation by workman to take part in the strike during the pendency of the incompetent appeal, is liable to be punished. Considering the point, their Lordships said at page 74 of the report, as follows:— ‘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 heard, but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent, e.g. 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 CPC. 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 Art. 182 (2) of the Indian Limitation Act prescribes three years period of limitation for execution of a decree or order of the Appellate Court’ when there has been an appeal. The Privy Council construed the latter phrase to mean that any application by a party to the Appellate Court to set aside or revise a decree or order of a court subordinate thereto is an ‘appeal’ within the meaning of the above provision, even though it is irregular or incompetent, or the persons affected by the application to execute were not parties, or it did not imperil the whole decree or order. They refused to read into the words any qualification either as to the character of the appeal, or as to the parties to it. Nagendra Nath. v. Suresh Chandra (AIR 1932 PC 165 = 36 L.W. 7) We consider that the word ‘appeal’ must be construed in its plain and natural sense without the intention of any qualifying words such as are intended, to be introduced by the contention raised before us”. 18. In view of this settled position of law, it cannot be doubted that the defendant did prefer art appeal, of course, with an application for condonation of delay. As per R. 3-A, the petition to condone delay is also to be filed either along with the appeal or thereafter. So, it is in the appeal, an application to condone delay is filed. The question came up for consideration in a decision in Promotho Nath Roy. v. W.A. Lee (AIR 1921 Cal. 415), where a Division Bench held that ‘an order dismissing an appeal as barred by limitation prescribed therefor after further refusing an application under S. 5 of the Limitation Act to admit the appeal after the prescribed time, is ‘passed on appeal’ Under S. 109 of C.P.C.” In H.G. Pereira. v. W.A. Lee (AIR 1921 Cal. 415), where a Division Bench held that ‘an order dismissing an appeal as barred by limitation prescribed therefor after further refusing an application under S. 5 of the Limitation Act to admit the appeal after the prescribed time, is ‘passed on appeal’ Under S. 109 of C.P.C.” In H.G. Pereira. v. East Indian Railway (AIR 1926 Patna 102), the question was whether refusal of an application to condone the delay would amount to a final order, it was held, that ‘an order extending the time for presenting an appeal to the High Court under S. 5 of the Limitation Act and thus admitting the appeal is not a final order within the meaning of Section 109 of the Code though an order refusing such extension would amount to a final order. In C.I.T. v. Shahzadi Begum ( AIR 1952 Mad 232 = 65 L.W. 655), a Division Bench of this Court considered the question of filing an appeal under the Income-tax Act, 1922. The appeal was filed with an application to condone the delay, which was subsequently rejected as time barred. The question which came up for consideration was, whether the rejection of the application to condone the delay, is a dismissal of the appeal itself. While considering the same, in paragraph 5 of the judgment, the court held: ‘The point for determination is whether the narrow construction put upon S. 31 by the Bombay, and Allahabad High Courts should be preferred to the liberal construction placed upon that Section by the Patna High Court. A form is prescribed by S. 30 and Rules were made under the Rule making power for presenting an appeal. After an appeal is so presented, the appellate authority may have to consider certain questions of a preliminary nature, not, touching the meritts of the order appealed against. Such que stions are, for example, whether the appeal was presented in time and whether there was sufficient cause to condone the delay, whether an appeal conformed to the formalities prescribed by the Rules or not, and whether an appeal was or was not barred by any of the provision of the Act and so on. These questions, though in a sense they may relate to the appeal, do not really concern the merits of the appeal, i.e. the question whether the order appealed against was correct or not’. These questions, though in a sense they may relate to the appeal, do not really concern the merits of the appeal, i.e. the question whether the order appealed against was correct or not’. Thereafter, their Lordhsips went on to say, following the decision in AIR 1932 PC 165 = 36 L.W. 7) (supra) and said: “There is no definition of appeal in the Civil P.C. 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’. There is no particular reason for not accepting and applying this definition of an appeal under the Income-tax Act. The appeal may be an irregular appeal or an incompetent appeal or even may be an appeal which was presented out of time. But still the Appellate Court has to apply its mind before it rejects the application on a preliminary ground that no case for condoning the delay was made out or that the formalities required by law have not been complied with or that the appeal was incompetent. In cons idering these questions the court exercises the appellate power and not a power which is outside it” Ultimately, their Lordships said that the dismissal of an application to condone the delay, is a decision in the appeal itself. 19. In this connection it is also necessary to take note of the decision of the Bombay High Court in C.I.T. v. Mysore Iron, and Steel Works (AIR 1949 Bom. 400), where a contrary view was taken, where the Bombay High Court held that when the application to condone the delay is dismissed, the appeal does not reach the prescribed stage under S. 31 and therefore, it cannot be said that the decision is taken in appeal. In a subsequent decision of the Bombay High Court reported in K.K. Porbunder Walia. v. I.T. Commr. ( AIR 1952 Bom. 157 ) also, a similar view was taken. 20. The decisions of this Court as well as the Bombay High Court came up for consideration in the decision in Mela Ram & Sons. v. C.I.T. ( AIR 1956 SC 367 = 69 L.W. 986). v. I.T. Commr. ( AIR 1952 Bom. 157 ) also, a similar view was taken. 20. The decisions of this Court as well as the Bombay High Court came up for consideration in the decision in Mela Ram & Sons. v. C.I.T. ( AIR 1956 SC 367 = 69 L.W. 986). At page 371 of the reports, their Lordships dealt with this matter. The decisions in AIR 1932 PC 165; A.I.R. 1954 SC. 73; AIR 1921 Cal 415; AIR 1952 Mad 232 , were all approved and accepted as good law. The decisions of the Bombay High Court in AIR 1949 Bom. 400, AIR 1952 Bom. 157 , etc., which took a contrary view, were over-ruled. Their Lordships held thus: “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. Suresh Chandra (1932 PC 165), 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 CP, 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; “In ‘Promotho Nath Roy. These observations were referred to with approval and adopted by this Court in Raja Kulkarni. v. The State of Bombay 1954 SC 73; “In ‘Promotho Nath Roy. v. W.A. Lee’ 1921 Cal. 415, 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, CPC. 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. Then, the next question is, whether it is an order passed under S. 31 of the Act. That section is the only provision relating to the hearing and disposal of appeals, and if an order dismissing an appeal as barred by limitation is one passed in appeal, it must fall within S. 31 . And as S. 33 confers a right of appeal against all orders, passed under S. 31, it must also be appealable. But then, it is contended that in an appeal against assessment, the only order that could be passed under S. 31(3)(a) is one which confirms, that such an order could be made only on a consideration of the merits of the appeal, and that an order dismissing it on the ground of limitation is not within the section. That was the view taken in 1952 Punj. 203. But there is practically a unanimity of opinion among all the other High Courts that to fall within the section it is not necessary that the order should expressly address itself to and decide on the merits of the assessment, and that it is sufficient that the effect of the order is to confirm the assessment as when the appeal is dismissed on a preliminary point . In 1952 Mad. 232, Satyanarayana Rao, J. said: “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. In 1954 Cal. 468, construing Ss. 34, 35 and 36, Bengal Agricultural Income-tax Act, which are in terms identical with those of Ss. 30, 31 and 32 Indian Income-tax Act. In 1954 Cal. 468, construing Ss. 34, 35 and 36, Bengal Agricultural Income-tax Act, which are in terms identical with those of Ss. 30, 31 and 32 Indian Income-tax Act. Chakravarti, J. observed: “I would base that view on the ground that the order in effect, confirmed the assessment or, at any rate, disposed of the appeal and was thus an order under S. 35, because what that section really contemplated is a disposal or conclusion of the appeal and the forms of orders specified in it are not exhaustive. 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 time or both’. This reasoning is also the basis of the decisions of the Bombay and Allahabad High Courts, which hold that an order rejecting an appeai on the ground of limitation after it had been admitted is one under S. 31, though there is no consideration of the merits of the assessment. Thus, in 1952 Bom. 157, Chagla, C.J. observed: “although the Appellate Assistant Commissioner did not hear 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. In- Special Manager of Court of Wards. v. Commr. of Income-tax, (1950) 18 ITR 204 (All), the Allahabad High Court stated that view as: “possible that even though the period of limitation is prescribed under S. 30 and the power to grant extension is also given in that Section the power is really exercised under S. 31 as the Appellate Assistant Commissioner when he decides not to extend the period of limitation may be said in a sense to have confirmed the assessment. The respondent relied on a later decision of the Allahabad High Court in - Mahabir Prasad Niranjanlal. v. Commr. The respondent relied on a later decision of the Allahabad High Court in - Mahabir Prasad Niranjanlal. v. Commr. of Income-tax ;’ 1955 All 296), wherein it was held by the learned judges, departing from the previous course of authorities of that court, that an order of the Appellate Assistant Commissioner dismissing an appeal as time-barred was one under S. 30(2) and not under S. 31, and was therefore not appealable. This conclusion they felt themselves bound to adopt by reason of certain observations of this Court in - Commr. of Income-tax- v. Arunachalam Chettiar 1953 SC 118, But when read in the context of the point that actually arose for decision in that case, those observations lend no support to the conclusion reached by the learned judges. There, the facts were that an appeal was preferred by the assessee under S. 30(1) against an order of the Income-tax Officer and that was dismissed by the Appellate Assistant Commissioner on 19.11.1945 as incompetent. No appeal was filed against this order, and it became final. But, acting on a suggestion made in the order dated 19.11.1945, the assessee filed an Original Miscellaneous Application before the Appellate Tribunal for relief, and by its order dated 20.2.1946, the Tribunal set aside the findings of the Income-tax Officer, and directed him to make a fresh computation. Then, on the application of the Commissioner of Income-tax, Tribunal referred to the High Court under S. 66(1), Income-tax Act, the following question: The High Court declined to answer this reference on the ground that the order of the Tribunal was not one passed in an appeal under S. 33(1) and that in consequence, the reference under S. 66(1) was itself incompetent. The correctness of this decision was challenged on appeal to this Court, and in affirming it, this court observed: “when on 19.11.1945 the Appellate Assistant Commissioner declined to admit the appeal, the assessee did not prefer any appeal but only made a Misc. Application. Indeed, in the Statement of the case the Appellate Tribunal states that in entertaining that application and correcting the error of the ITO, it acted in exercise of what is regarded as its inherent powers. Now, these observations came to be made by way of answer to a new contention put forward by the learned Attorney-General in support of the appeal. That contention was that the Misc. Now, these observations came to be made by way of answer to a new contention put forward by the learned Attorney-General in support of the appeal. That contention was that the Misc. Petition presented to the Tribunal might be treated as an appeal against the order dated 19.11.1945, in which case, the order passed thereon on 20.2.1946 would fall under S. 33(4) and the reference would be competent. In disagreeing with this contention, this Court observed that the appeal to the Appellate Assistant Commissioner was incompetent under S. 30(1), that even if it was competent, the order dated 19.11.1945 was not one contemplated by S. 31, and there could be no appeal against such an order under S. 33(1); Now, it should be noticed that the question actually referred under S. 66(1) was the correctness and legality of the order passed in a Miscellaneous Application and not of any order made in an appeal preferred under S. 33 (1). In this context, the point sought to be raised by the learned Attorney General did not arise at all for decision, and the observations in answer thereto cannot be read as a pronouncement on the question of the maintainability of the appeal, much less as a decision that an order dismissing an appeal as barred by limitation is one under S. 30(2). Accordingly, the question whether an order dismissing an appeal as barred by limitation falls under S. 30(2) or S. 31 remains unaffected by the observations in 1953 SC 118. Then again, under the provisions of the Act, limitation is not the only preliminary ground on which an appeal could be disposed of without a consideration of the merits. S. 30(3) provides that an appeal shall be in the prescribed form and shall be verified in the prescribed manner. If the Appellate Assistant Commissioner holds that the appeal does not comply with the requirements of this enactment and rejects it on that ground, the order must be one made under S. 31, since S. 30(3) makes no provision for such an order, as does S. 30(2) in the case of limitation. All the orders under S. 31 being appealable under S. 33, the order of dismissal for non-compliance with S. 30(3) must also be appealable, and it was so decided in - Gyan Manjari Kuari. v. C.I.T. 1944 Pat. All the orders under S. 31 being appealable under S. 33, the order of dismissal for non-compliance with S. 30(3) must also be appealable, and it was so decided in - Gyan Manjari Kuari. v. C.I.T. 1944 Pat. 112 How is this view to be reconciled with the contention that S. 31 contemplated only orders on the merits of the assessment and not on preliminary issues? Vide also the decision in Ananda. v. C.I.T. 1931 Pat. 306, which was followed in 1944 Pat. 112, and in Ramnarayana Das. v. C.I.T. 1950 Orissa 205. “There is thus abundant authority for the position that S. 31 should be liberally construed so as to include not 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” (emphasis supplied) 21. In Sheodam Singh. v. Daryao Kunwar ( AIR 1966 SC 1332 ), question, which came up for consideration was, what is the effect of a common judgment pronounced in the connected suits, out of which, one appeal was dismissed for default or dismissed on the ground of limitation. While considering the same, in para 13 of the judgment at page 1336, it was held that even if the appeal was dismissed on the ground of default or on the ground of limitation, it will amount to dismissal of the appeal and therefore, that will constitute res judicata in entertaining the other appeals from the connected suits. ‘Where the trial court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial courts decision stands confirmed, the decision of the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case, the result of the decision of the appellate court is to confirm the decision of the trial court given on merits, and if that is so, the decision of the appeal court will be res judicata. (emphasis supplied) 22. In such a case, the result of the decision of the appellate court is to confirm the decision of the trial court given on merits, and if that is so, the decision of the appeal court will be res judicata. (emphasis supplied) 22. [I have already stated in the earlier portion of the judgment that on the basis of the judgment reported in AIR 1917 PC 179 = 7 L.W. 156 (cited supra), certain amendments were inserted in Madras, even in 1921. Sentence substituted: 5.12.1996.] That amendment was more or less in tune with the present Rule 3-A to Order 41. This Court had occasion to consider the scope of that Rule in the decision reported in Bayya Reddi. v. T.S. Gopala Rao ( AIR 1934 Mad. 303 = 66 M.L.J. 486 = 39 L.W. 499). In that case, this Court also took note of the decision in Nagendra Nath Dey. v. Suresh Chandra Dey (AIR 1932 PC 165). Taking note of the various other decisions, the learned judge held that sub-rule (3) added to Rule 1, which corresponds to Rule 3-A is a unique procedure and in order under sub-rule (3) to Rule 1, to Order 41, is only an order under that rule and not an order in the appeal. The learned judge at page 304 of the reports, after extracting the relevant rule, held thus: ‘Under this rule, the question of delay is decided beforehand and the appeal is not admitted till that point has been decided in the appellants favour. This to condone the was not the procedure before the amendment’. In that view, His Lordship held that the decision of the Privy Council could be distinguished. 23. The said decision was considered by this Court in Gouse Bi. v. Salima Bi. ( AIR 1974 Mad 220 = 87 L.W. 171). A Division Bench of this Court was also of the view that the decision in AIR 1934 Mad 303 (supra) is not good law. In para 8 of the reports, the Division Bench said: “In the same way, in our opinion, particularly having regard to the wording of O. 41, R. 1, as pointed out already there is an appeal to this court, even though it has not been presented in time and might even turn out eventually that the application for excusing the delay is not allowed. Madhavan Nair, J. expressed the view that the decision of the Privy Council did not apply to the facts of the case before him. With respect, we differ” 24. In Rani Choudhury v. Lt. Col. Surajjit Choudhury (1982) 2 SCC 596 = 95 L.W. 148 S.N.), the question that came up for consideration related to the newly added Explanation to R. 13 of O. 9, CPC. The court held: “In the present case, the appeal was dismissed as barred by limitation. That it was an appeal even though barred by time is clear from Mela Ram. & Sons. v. CIT ( AIR 1956 SC 367 = 69 L.W. 986) where Venkatarama Ayyar, J. speaking for the court, after referring to Nagendra Nath Dey. v. Suresh Chandra Dey. , (AIR 1932 PC 165 = 36 L.W. 7); Raja Kulkarni v. State of Bombay ( AIR 1954 SC 73 ) and Promotho Nath Roy v. W.A. Lee (AIR 1921 Cal 415) held that an appeal presented out of time is an appeal, and an order dismissing it as time-barred, is one passed in appeal’. There can be no dispute then that in 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” (emphasis supplied) In the case before the Supreme Court, an application to set aside the ex parte decree was filed. At the same time, an appeal was filed against the ex parte decree with an application delay. The application to condone the delay was dismissed and the appeal was not entertained. The question before the Supreme Court was, whether the dismissal of the appeal on the ground of delay, bars the entertainment of an application under O. 9, R. 13, CPC. The question was whether there was an appeal at all, since the same has been dismissed as out of time. In paragraph 4 of the judgment, their Lordships said that the dismissal of the appeal as time barred is one for disposal of the appeal itself. Before the Supreme Court, an argument was also taken on the basis of the decision reported in Chandra Abdul Majid v. Jawahir Lal (AIR 1914 PC 66). In paragraph 4 of the judgment, their Lordships said that the dismissal of the appeal as time barred is one for disposal of the appeal itself. Before the Supreme Court, an argument was also taken on the basis of the decision reported in Chandra Abdul Majid v. Jawahir Lal (AIR 1914 PC 66). Thereafter, the Judges of the Supreme Court in para 15 held thus: “A plain reading of the Explanation clearly indicates that if any appeal against an ex parte decree has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aside the ex parte decree under O. 9, R. 13 of the Code will be entertained. The words used in the Explanation are clear and unambiguous. The language used in the Explanation clearly suggests that where there has been an appeal against a decree passed ex parte and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under O. 9, R. 13, of the Code for setting aside the ex parte decree. An appeal may be disposed of on various grounds. It may be disposed of after proper hearing on merits and this is usually the normal way of disposal of an appeal. An appeal may be disposed of also for non-prosecution thereof. Though the dismissal of an appeal on the ground of non-prosecution of the same is not disposal of the appeal on merits, yet the dismissal of the appeal for non-prosecution results in the disposal thereof. An appeal may also be dismissed on the ground of limitation, if cond onation of delay in filing the appeal is not allowed by the court. An appeal may also be liable to be dismissed for non-compliance with any condition relating to the riling of the appeal and also for other reasons. An appellant is also entitled to withdraw the appeal and the withdrawal of the appeal also results in the disposal of the appeal, though in such a case no merits of the appeal are adjudicated upon”. After referring to the decision of the Privy Council, referred to supra, their Lordships said that decision has no relevance and the same was distinguished on facts. 25. In State of Karnataka. v. Nagappa ( AIR 1986 Kar. After referring to the decision of the Privy Council, referred to supra, their Lordships said that decision has no relevance and the same was distinguished on facts. 25. In State of Karnataka. v. Nagappa ( AIR 1986 Kar. 199 ), the question that came up for consideration was, whether an application under Rule 3-A to O. 41, CPC, is to be filed along with the memorandum of appeal and in case such an application is not filed, whether the appeal could be entertained. Venkatachala, J., as he then was, leading the Bench, held that the provisions under O. 41, R. 3-A, CPC are not mandatory and the appeal should not be dismissed. The appellant should be given an opportunity to rectify the defects. While considerin g the same, their Lordships held thus:— “A court before whom a time barred appeal comes up for hearing with no application along with it under S. 5, Limitation Act, for condonation of delay has to necessarily dismiss it not because of non-compliance with R. 3A(1), but because of the operation of S. 3 of that Act. Therefore, what a court should do when a time barred appeal is presented before it without being accompanied by an application for condonation of delay is to regard such presentation as defective for non-compliance of R. 3A(1) and to afford to the appellant a reasonable opportunity to remedy the defect, instead of dismissing the appeal outright or in limine ”. 26. Our High Court had occasion to consider the scope of R. 3-A to O. 41, Code of C.P. in M.D., T.P. Transport Corpn. v. K.C. Karthiyayani ( AIR 1995 Mad 102 = 1994-2-L.W. 54), wherein the Division Bench held thus: “Order 41, R. 3A, C.P.C. has been inserted by the Amending Act, 1976 in order to prescribe the procedure for securing the final determination of the question as to limitation even at the stage of admission of the appeal. The Rule does not prescribe the period of limitation for an appeal. The period of limitation is provided only under Art. 116 of the Limitation Act, 1963 in respect of appeals and it cannot be said that O. 41, R. 3A gives any additional right to litigants to claim condonation. Moreover, condonation of delay is not a matter of right. The Rule does not prescribe the period of limitation for an appeal. The period of limitation is provided only under Art. 116 of the Limitation Act, 1963 in respect of appeals and it cannot be said that O. 41, R. 3A gives any additional right to litigants to claim condonation. Moreover, condonation of delay is not a matter of right. The litigant who comes to court after the prescribed period of limitation is bound to satisfy the court that he has sufficient cause for the delay”. The Bench further said that R. 3-A is not giving any new right to the litigant, to have the delay condoned. The limitation for filing the appeal is provided under the Limitation Act, and unless he satifies the court to have the delay condoned, he cannot have the delay condoned as of right. From the aforesaid decision, it is clear that it is the provisions of S. 3 of the Limitation Act that are applied and thus it is the appeal that is dismissed though it is a consequence of the dismissal of the application. 27. A Full Bench of the Kerala High Court had occasion to consider the same in Thambi. v. Mathew ( 1987 (2) K.L.T. 848 ) (F.B.). After extracting the newly added Rule 3-A to O. 41, CPC., their Lordships said, “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 lo deal with the appeal under R. 11 or R. 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 R. (3) of R. 3A does not render an appeal properly presented under Sub-Rule (1) a proposed appeal. 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 R. (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 Ammaji Rao. v. Boggarappu Popaiah Setty ( AIR 1975 AP 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 the application has to be disposed of finally. Section. 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 on 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. (emphasis supplied) 28. In Santi v. Pritam Singh (AIR 1967 Pun. 9) (F.B), a Full Bench had occasion to consider a similar question, where an appeal was filed by a party as indigent person, but the same was dismissed directing the appellant to pay the requisite court fee. The question was, what is the effect of non-payment of court fee and whether there was an appeal. Their Lordships said that non-payment of court fee and the consequent dismissal is a dismissal of the appeal and the limitation will have to be computed from that date. The question was, what is the effect of non-payment of court fee and whether there was an appeal. Their Lordships said that non-payment of court fee and the consequent dismissal is a dismissal of the appeal and the limitation will have to be computed from that date. In that case, their Lordships also took into consideration the decision in AIR 1934 Mad 303 (supra) and distinguished the same. Their Lordships followed AIR 1932 PC 165 (supra). From, these decisions, it is clear that R. 3-A is intended only for the disposal of that application in the appeal. It has nothing to do with the question of limitation. For preferring the appeal, certain formalities will have to be complied with. When the appeal is filed out of time, R. 3-A contemplates an application to be filed along with the Memorandum of appeal. That is only to enable the court to have the adjudication on the question of limitation. It is the discretion of the court as to whether to entertain that application and condone the delay and thereafter, hear the appeal on merits or to dismiss the same at the preliminary stage itself. In either way, it is the disposal of the appeal. As I have said, Rule 3-A will have to be read along with S. 3 of the Limitation Act. If that be so, when the defendant filed an appeal along with an application to condone the delay and the same was dismissed and confirmed in revision, the consequence is that appeal filed by him was also disposed of. The only question is, whether the defendant exercised her right of appeal and whether the same was exhausted. In view of the decisions cited supra, it cannot be doubted that the defendant did prefer an appeal and the same was dismissed or rejected. 29. Counsel for the defendant placed before us the following decisions. They are, Mammuda Khateen v. Beniyan Bibi (AIR 1976 Cal. 445) and Des Raj. v. OmParkash (AIR 1986 P & H 3). I do not think that both these decisions will have any application. In the former case, the question that came up for consideration was, whether the order dismissing the delay petition is a decree, from which a Second Appeal lies. 445) and Des Raj. v. OmParkash (AIR 1986 P & H 3). I do not think that both these decisions will have any application. In the former case, the question that came up for consideration was, whether the order dismissing the delay petition is a decree, from which a Second Appeal lies. Their Lordships held that the Second Appeal is not maintainable, for, it is not a decree, but a revision under S. 115, CPC may lie. While considering the same, at page 77, the Full Bench said: “It seems to us that when an appeal is barred by limitation and an application is made under S. 5 of the Limitation Act for condonation of the delay along with the memorandum of appeal, until the application under S. 5 is allowed, the appeal cannot be filed or admitted at all. In other words, till a favourable order is made on the application under S. 5, the appeal is non-est. In that event, the question of rejecting a memorandum of appeal does not arise at all at this stage’. The Full Bench has not taken into consideration any of the decision of the Supreme Court. It can not be said that the appeal is non-est. It may be an incompetent appeal, as held by the Privy Council. It is the appeal that is dismissed, the reason being that there is no ground to condone the delay. In the latter case, in which great reliance is placed by learned counsel, may also not have any application. It must be noticed that the decision reported in Santi v. Pritam Singh (AIR 1967 Pun 9) (F.B.) was not even cited before that Bench. In the said decision also, none of the decisions of the Supreme Court has been taken into consideration, nor even cited. Their Lordships gave importance to Rule 9, to O. 41, CPC regarding registration of the memorandum of appeal. It was held by that Bench that only when the appeal is registered, it can be taken as an appeal. The said decision runs counter to the decision in AIR 1954 SC 76 and also AIR 1956 SC 367 . The decisions relied on by the defendant are, therefore, distinguishable. 30. If the defendant has already exhausted the right of appeal and got defeated, can he file another appeal on the basis of another copy obtained by her? The said decision runs counter to the decision in AIR 1954 SC 76 and also AIR 1956 SC 367 . The decisions relied on by the defendant are, therefore, distinguishable. 30. If the defendant has already exhausted the right of appeal and got defeated, can he file another appeal on the basis of another copy obtained by her? I do not think that the defendant will have any such right. In Collector of Customs, Calcutta v. East India Commercial Co. Ltd. ( AIR 1963 SC 1124 ), their Lordships considered the questions of merger as to what is the effect of an order made in appeal, while considering the same, their Lordships have held thus: ‘When an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. In all these three cases, after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of conf irmation is quite as efficacious as an operative order as an appellate order of reversal or modification. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court, it seems difficult to hold even in a case where the appellate authority has confirmed the order of the original authority that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority which has confirmed the order of the original authority. In effect, by issuing a writ by the original authority setting aside its order, the High Court would be interfering with the order of the appellate authority which had confirmed the order of the original authority even though it has no territorial jurisdiction to issue any writ to the appellate authority’. The principle, viz., that the appellate order is the operative order after the appeal is disposed of, is the basis of the rule that the decree of the lower court merges in the decree of the appellate court. The principle, viz., that the appellate order is the operative order after the appeal is disposed of, is the basis of the rule that the decree of the lower court merges in the decree of the appellate court. On the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision - whether of reversal or modification or mere confirmation’. 31. This decision was found to be correct and approved by the Supreme Court again in S.S. Rathore v. State of M.P. ( (1989) 4 SCC 582 ). In that case, their Lordships held that the principle of merger applied not only to the orders of courts, but also to the orders of the Tribunals. The question in that case was, what is the period of limitation to challenge an order of the Government in a disciplinary proceeding, whether the same is to be computed from the date of original order or from the date of appellate order, which confirmed the punishment. Their Lordships said, when an appeal is disposed of, the appellate ord er that has to be challenged and the cause of action would be from the date of that order, on the principle of merger’. The earlier decision of the Supreme Court, which has taken a contrary view, reported in State of U.P. v. Mohd. Nooh ( AIR 1958 SC. 868 ) was declared as not a good law. If the defendant has exhausted his remedy by filing an appeal and got defeated, he cannot further entertain another appeal against the very same order. The order of the trial court was no longer in existence, for that has merged in the appellate order. The appeal having been dismissed, the trial courts order cannot further be challenged in appeal. The ground in revision is therefore to be upheld. The lower appellate court has acted with material irregularity and illegality in entertaining the appeal CMA 156 of 1989. 32. An argument was also taken by counsel for the defendant that the application under S. 9 of CTP Act was deemed to have been pending during the pendency of the appeal or Second Appeal. For the said purpose, reliance is placed on the decision in Thailammal v. V. Janardhan Raju & Ors 1992-2-L.W. 595 (SC). 32. An argument was also taken by counsel for the defendant that the application under S. 9 of CTP Act was deemed to have been pending during the pendency of the appeal or Second Appeal. For the said purpose, reliance is placed on the decision in Thailammal v. V. Janardhan Raju & Ors 1992-2-L.W. 595 (SC). In that decision, the Supreme Court held that the application under S. 9 CTP Act is in the nature of interlocutory proceedings and therefore, if an appeal or a Second Appeal is filed against the original decree, the same could be challenged under S. 105, CPC. It was therefore contended that he need not file an appeal and if the application is deemed to have been pending, the lower appellate court was justified in maintaining the CMA and even in the Second Appeal filed by him, the same could be agitated. Para 9 of the judgment of the Supreme Court was relied for the said purpose. “So far as the contention of the learned counsel for the plaintiffs is concerned, we are of the opinion that according to S. 9 it is open to a defendant to file an application thereunder in the suit for ejectment filed by the landlord against him. Such an application would be in the nature of an interlocutory application in the suit. In such a situation, it follows that once an appeal is filed by the defendant against the decree of the trial court, he is entitled to challenge the correctness of any interlocutory order passed in the suit, in such appeal, by virtue of S. 105 of the CPC. It is not necessary in such a case that he should prefer an independent appeal against the order dismissing an interlocutory application even if it is appealable. ‘This principle is of equal application hereineven though the interlocutory application is one under S. 9 of the Act. Accordingly, it must be held that in the appeal Second Appeal against the decree of the trial court, it was open to the defendants to challenge the correctness of the order dismissing their application under S. 9. The High Court was, therefore, not right in holding that the said application having been dismissed by trial court and no fresh application having been filed, it must be held that there was no application under S. 9. The High Court was, therefore, not right in holding that the said application having been dismissed by trial court and no fresh application having been filed, it must be held that there was no application under S. 9. The application filed by the defendants in the trial court must be deemed to be pending during the pendency of the appeal/Second Appeal’. In the decision cited above, the defendant claimed the benefits of CTP Act. The suit was decreed and it was further found that the defendant was not entitled to the benefits of CTP Act. The defendant filed appeal and got the suit dismissed. Against that decision, the plaintiff preferred a Second Appeal. There was no appeal or cross appeal by the defendant against the findings in the application under S. 9 of CTP Act. A learned judge of this Court held that since the defendant had not filed any appeal or cross appeal nothing prevented the Court from passing a decree and the suit was decreed and recovery was ordered. That was challenged before the Supreme Court. The contention that was taken before it was that S. 9 of the Act contemplates an independent application and S. 9-A provides for an independent appeal and if no appeal is preferred, it would follow that he has subjected himself to the decision. Therefore, the contention before the Supreme Court was that the defendant cannot entertain the contention over again regarding his eligibility under S. 9, CTP Act. This contention was repelled by the Supreme Court holding that the application under S. 9 of the Act is in the nature of interlocutory application in the suit and therefore, it can be challenged under S. 105, CPC. If the plaintiff files an appeal, the same could be challenged by the defendant either by filing a cross objection or by filing a separate appeal. It was further found that no fresh application under S. 9 is required. 33. I do not think that the said decision has any bearing to the facts of this case. If a decision has been concluded, that cannot be challenged in a collateral proceeding. In this case, an appeal was preferred, which was dismissed. The provisions of S. 9-A of the CTP Act were also availed of by the defendant, though it was dismissed on the ground of limitation. That order has become conclusive and that cannot be challenged. If a decision has been concluded, that cannot be challenged in a collateral proceeding. In this case, an appeal was preferred, which was dismissed. The provisions of S. 9-A of the CTP Act were also availed of by the defendant, though it was dismissed on the ground of limitation. That order has become conclusive and that cannot be challenged. In fact, this aspect of the matter wad not challenged before the lower appellate court. In para 13 of the judgment of the lower appellate court, it is stated: “As against the dismissal of the said petitions, no appeal is preferred by the defendants and hence the claim under S. 9 of the Madras City Tenants Protection Act by the defendants cannot be sustained and there cannot be any tenable objection for ordering delivery of possession of the plaintiffs with a condition to pay the value of the superstructure of the huts occupied by the defendants, by virtue of S. 9 of the Madras City Tenants Protection Act”. This observation of the lower appellate court is not correct. The defendant did prefer an appeal and got the same dismissed. At the same time I do not find that any attempt was made to challenge the correctness of the finding against him under S. 9 of the CTP Act. Since he did not make any attempt to challenge the same in the appeal before the lower appellate court, can he be allowed to reagitate the matter after the appeal itself has been disposed of. In the appeal, there is a finding against by the lower appellate court. The lower appellate court rightly found that the defendant cannot invoke the provisions of S. 9, CTP Act and thereafter, allowed recovery. After allowing recovery, a CMA was filed before the lower appellate court, where the defendant was given the benefits of CTP Act. Once a decree for possession is granted, it follows that the defendant is not entitled to any right and he is bound to surrender possession. The effect of a decree cannot be curtailed by entertaining an incompetent appeal. This fact was also not taken into consideration by the lower appellate court while allowing the C.M.A. No. 156 of 1989. The judgment in C.M.A. No. 156 of 1989 has to be set aside and the revision allowed. Accordingly, C.R.P. No. 2818 of 1990 is allowed. No costs. 34. This fact was also not taken into consideration by the lower appellate court while allowing the C.M.A. No. 156 of 1989. The judgment in C.M.A. No. 156 of 1989 has to be set aside and the revision allowed. Accordingly, C.R.P. No. 2818 of 1990 is allowed. No costs. 34. In the Second Appeal, no substantial question of law has been raised against the dismissal of the application under S. 9 of CTP Act. The only ground that is urged is, whether the civil court has jurisdiction to entertain the suit and whether the plaintiffs should move the Rent Controller seeking recovery. If this Court has to take into consideration the grounds of appeal, ground No. 13, which deals with the revision filed by the defendant against the dismissal of his application to condone the delay in preferring an appeal. That C.R.P. itself was dismissed. Ground No. 5 is also not challenging the findings under S. 9, CTP Act. At any rate, if he has not challenged the same before the first appellate court and also got an adverse order, when he filed a C.M.A., the same cannot be challenged in the Second Appeal. I therefore, do not find any substantial question of law arising in this Second Appeal and the same is dismissed, however, without any order as to costs. 35. The respondents in the Second Appeal, have filed a cross objections, claiming relief against the finding of the courts below regarding the ownership over the superstructure. The finding regarding the ownership over the building is proved by the documents filed by the appellant in the Second Appeal. In so far as the documents produced by the respondent/plaintiff are concerned, in none of them, the building is made mention of. Therefore, I do not find any merit in the cross objections and the same is only to be dismissed, as the finding of the courts below is only a finding of fact. Accordingly, the Memorandum of cross objections is also dismissed. There will be no order as to costs. S.S. Subramani, J.:— (5-12-96) [The matter having been set down for being spoken to, the court made the following order:] 2. This matter has been disposed of by me on 19.11.1996. 3. Accordingly, the Memorandum of cross objections is also dismissed. There will be no order as to costs. S.S. Subramani, J.:— (5-12-96) [The matter having been set down for being spoken to, the court made the following order:] 2. This matter has been disposed of by me on 19.11.1996. 3. In page 10, after the extraction of Rule 3-A to O. XLI, Code of Civil Procedure, the second sentence reads thus: ‘On the basis of the 14th Law Commission report, necessary amendment was made to the Code of Civil Procedure in the State of Tamil Nadu, even in the year 1921’. On subsequent verification, I find that the amendment by the Madras High Court was long before the 14th Law Commission Report. Hence, in the statement of facts, a slight change is to be made in the above extracted sentence. Accordingly, the aforesaid sentence occuring at page 10 of the judgment, shall read thus: ‘Even before the 14th Law Commission Report, necessary amendment was made to the Code of Civil Procedure in the State of Tamil Nadu, even in the year 1921, on the basis of the decision reported in AIR 1917 PC. 179 = (1918) 7 L.W. 156, (Krishnaswami Pani Kondar v. Ramaswami Cettiar)’. Likewise, at page 27, in para 22, the first sentence reads thus: ‘I have already stated in the earlier portion of the judgment that on the basis of the 14th Report of the Law Commission, certain amendments were inserted in Madras, even in 1921’. Consequential changes have to be made in that sentence also. The judgment will be read as follows:— ‘I have already stated in the earlier portion of the judgment that on the basis of the judgment reported in AIR 1917 PC 179 (cited supra), certain amendments were inserted in Madras, even in 1921’. It is ordered accordingly.