JUDGMENT Hon’ble Ran Vijai Singh, J.—This Second Appeal has been filed against the judgment and decree dated 29.3.2008 passed by Additional District Judge, Court No. 2, Deoria in appeal No. 8 of 1976, Parashuram Pandey and others v. Mahendra Dhar Dubey and others and also against the judgment and decree dated 28.5.2008 passed by the same Court in review petition No. 6 of 2008, Parashuram Pandey and others v. Rajendra and others, by which the original suit No. 433 of 1972 has been abated under Section 5 (2) of the U.P. Consolidation of Holdings Act. 2. The Stamp Reporter has raised two objections namely : (1) If the limitation for filing Second Appeal is counted from the date of the order of review then the appeal is well within time and if the limitation is counted from the date of original decree passed by the Appellate Court then the appeal is barred by time. (2) The Second Appeal is not maintainable against the order passed in Review Application. 3. Sri V.D. Ojha, learned counsel who has filed caveat on behalf of the plaintiffs-respondents has also raised the same preliminary objection. In his submissions in case the appeal is treated against the order dated 28.5.2008 passed on the review application then Second Appeal is not maintainable and the remedy is to file miscellaneous appeal under Order 43 Rule 1 (w) of the Code of Civil Procedure (in short C.P.C.) and in case, it is treated an appeal against the judgment and decree dated 29.3.2008 then the appeal is barred by time. Since there is no application under Section 5 of the Indian Limitation Act for condoning the delay in filing Second Appeal, therefore, it should be dismissed as barred by time. He has further submitted that both the orders cannot be challenged together in one Appeal. 4. Sri Sankatha Rai, learned counsel for the appellants has submitted before the Court that the limitation will be counted from the date of the last order passed in the review application and not from the date of original judgment dated 29.3.2008. In his submissions the Second Appeal is well within time and it is maintainable. 5. I have heard Sri Sankatha Rai, learned counsel for the appellants, Sri V.D. Ojha and Sri S.A. Lari, learned counsel for the respondents. 6. This case has got a chequered history. In his submissions the Second Appeal is well within time and it is maintainable. 5. I have heard Sri Sankatha Rai, learned counsel for the appellants, Sri V.D. Ojha and Sri S.A. Lari, learned counsel for the respondents. 6. This case has got a chequered history. The respondents plaintiffs have filed a suit for cancellation of the sale deed on 22.4.1972 before the IIIrd Additional Munsif, Deoria. In the said suit the defendants-appellants have filed an application for abating the suit under Section 5 (2) of U.P. Consolidation of Holdings Act on 8.1.1975. The plaintiffs-respondents have raised an objection that the case should not abate before the Consolidation Authority, as it is the suit for cancellation of the sale deed on voidable ground. The application of the defendants-appellants was rejected by the Trial Court on 30.5.1975. This order has never been challenged. 7. However, later on after contest the suit was dismissed by the Trial Court on 27.11.1975. Aggrieved from that order the plaintiffs-respondents have filed an appeal. The appeal was also dismissed by the IVth Additional District Judge, Deoria on 20.9.1977. It appears that the aforesaid appeal was decided on merit in absence of the plaintiffs-respondents. 8. The plaintiffs-respondents have filed a Second Appeal challenging the judgment and decree of the lower appellate Court dated 20.9.1977 before the High Court. This appeal was numbered as Second Appeal No. 2646 of 1977 and was allowed by this Court vide judgment and order dated 28.10.2005 holding that in view of the explanation to Order 41 Rule 17 (1) of C.P.C., in absence of appellants counsel the appeal could not be decided on merit. Hence the judgment and decree dated 20.9.1977 was set aside and the matter was remanded back to the lower appellate Court for deciding the case afresh. 9. After the case was remanded an application was filed by the plaintiffs-respondents under Order 6 Rule 17 of the C.P.C. before learned Additional District Judge Court No. 16, Deoria for amendment of the plaint by adding para 15-A to the effect that village has already been denotified under Section 52 of Consolidation of Holdings Act, therefore, the suit is barred by Section 49 of Consolidation of Holdings Act. This was vehemently opposed by the appellant, defendant, however, the appeal was abated by the lower appellate Court on 29.3.2008 under Section 5(2) of the U.P. Consolidation of Holdings Act. 10. This was vehemently opposed by the appellant, defendant, however, the appeal was abated by the lower appellate Court on 29.3.2008 under Section 5(2) of the U.P. Consolidation of Holdings Act. 10. Thereafter the plaintiffs respondents have filed a review application for correcting the error apparent on the record on the ground that if the appeal has abated the suit stands abated because the appeal is the continuation of the suit. This error was corrected and the review application was allowed vide order dated 28.5.2008. 11. Sri Sankatha Rai, learned counsel for the appellant has submitted before the Court that the impugned judgment and decree dated 29.3.2008 is barred by principle of res judicata as once defendants-appellants application for abating the suit under Section 5 (2) of the U.P. Consolidation of Holdings Act has been rejected then on the same set of facts and for the same reason the impugned order could not be passed. In support of his submissions he has placed reliance upon the judgment of Apex Court reported in AIR 1960 SC 941 , Satya Narain Ghosal and others v. Deo Raji Devi and others. 12. Apart from the above submissions learned counsel for the appellant has made many other submissions but that will be discussed later on if the occasion so arises as this Court at present intends to decide the preliminary objections raised by the Stamp Reporter and the learned counsel for the respondents with regard to the maintainability of Second Appeal. 13. As noted above, two objections are raised by the Stamp Reporter one with regard to the limitation and another with regard to maintainability of Second Appeal. This Court desires to deal with the second objection i.e., with regard to maintainability of Second Appeal first and in case this point is decided in affirmative then there will be no occasion to decide the objection No. 1. Second Objection of the Stamp Reporter as well as Counsel for the respondents : 14. For deciding this point it will be essential to look into the substantive provisions meant for filing of Second Appeal as contained under Section 100 as well as Orders 41 and 42 of the C.P.C. which talks about the appeal from original as well as from appellate decrees. Section 100 as well as Order 42 of the C.P.C. are reproduced below : "Section 100. Section 100 as well as Order 42 of the C.P.C. are reproduced below : "Section 100. Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. Order XLII “ 1. The rule of Order XLI and Order XLIA shall apply, so far as may be, to appeals from Appellate decrees, subject to the following proviso : Every memorandum of appeal from an appellate decree shall be accompanied by a copy of the decree appealed from unless the Court sees fit to dispense with either or all of them— (1) a copy of the judgment on which the said decree is found, (2) the judgment of the Court of the first instance, and (3) a copy of the finding of the Civil or the Revenue Court, as the case may be, where an issue was remitted to such Court for decision.” 15. From the bare perusal of Section 100, C.P.C. it is apparent that Second Appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court and while filing Second Appeal copy of the judgment on which the decree is found has to be appended. From the bare perusal of Section 100, C.P.C. it is apparent that Second Appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court and while filing Second Appeal copy of the judgment on which the decree is found has to be appended. Now this has to be looked into what is judgment and what is the decree under the C.P.C., for the purpose of filing Second Appeal. The judgment has been defined under Section 2 (9) of the C.P.C. and what the judgment should contain has been detailed under Order 41 Rule 32 of the C.P.C. both the provisions are reproduced below: Sec.2 (9) “Judgment” means the statement given by the Judge on the grounds of a decree or order. Order 41 Rule 32 deals that What judgment may direct—The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly. 16. From the bare perusal of the meaning of the judgment as contained under Section 2 (9) of the C.P.C. and Order 41 Rule 32 of the same code, it transpires that judgment may be for confirming, varying or reversing the decree from which the appeal is preferred. Otherwise also the judgment must contain the pleadings of the parties, evidence led and the conclusion drawn thereon. 17. Now the question would arise what is the decree. The word ‘decree’ has been defined under Section 2 (2) of the C.P.C. which is reproduced below : Sec. 2 (2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include— (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include— (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.—A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. 18. In order that decision of a Court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. For that purpose the operative portion of the judgment dated 29.3.2008 passed in Appeal No. 8 of 1976 is required to be looked into which is reproduced below : ÞpwWfd m0 iz0 tksr pdcUnh vf/kfu;e dh /kkjk&5 ¼2½ ds vUrxZr ;g vihy mi’kfer gks pqdh gS bl dkj.k vihy esa fufgr vU; fcUnqvksa ij xq.k&nks"k ds vk/kkj ij fopkj fd;s tkus dh dksbZ vko’;drk ugha gS A vkns’k orZeku vihy mRrj izns’k tksr pdcUnh vf/kfu;e dh /kkjk&5 ¼2½ ds vUrxZr iz’kfer gks pqdh gS blfy;s nkf[ky nQ~rj dh tk; A” 19. From the perusal of the operative portion of the so called judgment dated 29.3.2008 and the conclusion drawn by the Additional District Judge Court No. 2, Deoria, it is apparent that this do not contain either the contents of judgment or a decree as defined under Section 2 (9) read with Order 41 Rule 32 and 2 (2) of the C.P.C. as nothing has been adjudicated by the lower appellate Court on merit of the case. The lower appellate Court has only abated the case before the consolidation authorities where de novo proceeding has to be started by the consolidation authorities. 20. In view of the definition of the judgment and decree, the Court has to examine whether the judgment impugned in the present Second Appeal falls under the category of judgment and decree. The Full Bench of Allahabad High Court, as reported in AIR 1945 All 266 Mt. Chauli alias Subnaddra Devi v. Mt. 20. In view of the definition of the judgment and decree, the Court has to examine whether the judgment impugned in the present Second Appeal falls under the category of judgment and decree. The Full Bench of Allahabad High Court, as reported in AIR 1945 All 266 Mt. Chauli alias Subnaddra Devi v. Mt. Meghoo and others, has held as under : “ A decree is a formal document which must be drawn up in accordance with some decision of a Court. A finding in itself is not a decree.” 21. The Apex Court in the case of Ratansingh v. Vijaysingh and others, AIR 2001 SC 279 has held as under : “In order that decision of a Court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time barred is also not a decree. We are aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the meaning of the said definition. We are also aware of the contrary decisions rendered by High Courts on the same point. Dealing with some of those decisions a Full Bench of the Calcutta High Court (S.P. Mitra, CJ, Sabyasachi Mukherjee, J. (as he then was) and S.K. Datta, J.) has held in Mamuda Khateen v. Beniyan Bibi, AIR 1976 Cal. 415 that “if the application under Section 5 of the Limitation Act was rejected the resultant order cannot be decree and the order rejecting the memorandum of appeal is merely an incidental order.” The reasoning of the Full Bench was that when an appeal is barred by limitation the appeal cannot be admitted at all until the application under Section 5 of the Limitation Act is allowed and until then the appeal petition, even if filed, will remain in limbo. If the application is dismissed the appeal petition becomes otiose. The order rejecting the memorandum of appeal in such circumstances is merely an incidental order. If the application is dismissed the appeal petition becomes otiose. The order rejecting the memorandum of appeal in such circumstances is merely an incidental order. We have no doubt that the decisions rendered by the High Courts holding the contrary view do not lay down the correct principle of law.” 22. Similar view has been taken by the Full Bench of Karnataka High Court in the case of Commissioner Hubli- Dharwad Municipal Corporation v. Shrishail and others, AIR 2004 Kant 75. 23. Now if the so called judgment and decree in appeal is tested on those parameters as contained in Section 100, Sections 2(2), 2(9), Order XLI Rule 32 and Order XLII of the C.P.C. then it will transpire that the ingredients of the judgment and decree as contained under the relevant provisions of the C.P.C., are not satisfied. Therefore, the so called judgment and decree appended to this Second Appeal cannot be termed as judgment and decree. I am of the view that decree dated 29.3.08 as appended in Second Appeal could not be drawn as it do not contain any ingredients of the decree. It is well known that there can be no roof without any wall/pillar, likewise there can be no decree without having the essence of the judgment as contained under Section 2(9) read with Order 41 Rule 32 of the C.P.C. 24. After testing the requirements of a judgment and decree as contained under the relevant provisions of C.P.C. since I have held that so called judgment and decree dated 29.3.2008 do not contain any ingredients of the judgment and decree and the Second Appeal can only be filed against the judgment and decree of the lower appellate Court, therefore, I am of the considered opinion that Second Appeal is not maintainable against the so called judgment and decree dated 29.3.2008 25. Now the question remains what will be the remedy available to the appellant against the order dated 28.5.2008 passed in review application. The lower appellate Court while passing the impugned order dated 29.3.2008 has held that nothing has been decided on merit of the case and only appeal is being abated under Section 5 (2) of the U.P. Consolidation of Holdings Act. Now the question would be what is Appeal ? The lower appellate Court while passing the impugned order dated 29.3.2008 has held that nothing has been decided on merit of the case and only appeal is being abated under Section 5 (2) of the U.P. Consolidation of Holdings Act. Now the question would be what is Appeal ? It is well settled that the Appeal is the creature of the statute and it is deemed as continuation of the suit proceeding. The lower appellate Court on the review application of the appellant has modified/reviewed the earlier order dated 29.3.2008 to the extent of mentioning ‘the suit’ instead of ‘Appeal’ in the order dated 28.5.2008 and it is well settled that the appeal is the continuation of the suit, therefore, there is no substantial difference between the earlier order dated 29.3.2008 and the subsequent order dated 28.5.2008 passed by lower appellate Court. In fact when the review application has been allowed the original order dated 29.3.2008 has merged in the subsequent order passed in the review application dated 28.5.2008. Now the effect will be that at present the suit has abated under Section 5 (2) of the U.P. Consolidation of Holdings Act. Since the order for abating the suit has been passed in the review application and the application has been allowed under Rule 4 Order 47 of the C.P.C., therefore, the question would arise that what is the remedy available to the appellant to challenge the order dated 28.5.2008 passed in the Review application. 26. The Code of Civil Procedure is self contained code and there is a remedy for the appellant for filing an appeal from such order under Order 43 Rule 1 (w) of the C.P.C. Therefore, the appellant can file First Appeal From Orders under Order 43 Rule 1 (w) of the C.P.C. 27. The Court has taken a view that no Second Appeal is maintainable against the so called judgment and decree dated 29.3.2008, therefore, there is no occasion to decide the objection No. 1 as reported by the Stamp Reporter with regard to the limitation for filing Second Appeal. The appellant is given liberty to file an application for conversion of this Second Appeal into F.A.F.O. In case such application is filed by the appellant within a week from the date of delivery of the order, the matter may be placed as fresh before the appropriate Court dealing with First Appeal From Orders. ————