ORDER M.M. Das, J. - Heard Mr. P.K. Mohanty, learned Counsel for the Appellant and Mr. S.K. Mishra, learned Counsel, who has entered appearance on behalf of the Respondent before the appeal has been admitted. 2. Mr. Mishra, learned Counsel for the Respondent contends that as the first appellate Court has dismissed the appeal on the ground of limitation by refusing to condone the delay, a Second Appeal u/s 100 of the CPC will not lie. 3. Mr. P.K. Mohanty, learned Counsel for the Appellant, on the contrary, submits that it has been settled by the Apex Court in the case of Shyam Sundar Sarma Vs. Pannalal Jaiswal and Others, that while an appeal is dismissed on the ground of delay, the said order of dismissal will amount to a decree against which an appeal will lie u/s 100 of the CPC In the case of Shyam Sunder Sarma (supra), the facts involved were some-what different from the present case. In the said case, the Respondent before the Supreme Court filed a Title Suit against the Appellant and others for declaration of his title as a Thika Tenant in respect of the suit property and for other consequential reliefs. The Appellant, who was the Defendant No. 1 in the suit, entered appearance and contested the suit. When the suit was posted to a particular date, the Appellant-Defendant did not appear. Evidence of the Plaintiff was recorded. Thereafter, the plaint was amended at the instance of the Plaintiff. In view of the absence of the Defendant, he was set ex parte and on the subsequent date, the suit was decreed ex parte. The petition under Order 9, Rule 13 CPC accompanied by an application u/s 5 of the Limitation Act for condoning the delay in filing the said application was filed by the Defendant. The Defendant also filed an appeal against the ex parte decree along with an application for condonation of delay. The trial Court allowed the application u/s 5 of the Limitation Act and condoned the delay in filing the petition under Order 9, Rule 13 CPC The Plaintiff challenged the said order in a revision which was dismissed. A subsequent revision filed before the High Court was also dismissed. The trial Court allowed the application u/s 5 of the Limitation Act and condoned the delay in filing the petition under Order 9, Rule 13 CPC The Plaintiff challenged the said order in a revision which was dismissed. A subsequent revision filed before the High Court was also dismissed. In Title Appeal, as the Defendant did not appear to press the application u/s 5 of the Limitation Act, the Title Appeal against the ex parte decree was dismissed for default. The Supreme Court taking note of the fact that by dismissal of the appeal for default, the application u/s 5 of the Limitation Act filed alongwith the appeal, the appeal also stood dismissed for default. A question arose as to whether in view of the dismissal of the appeal, the petition under Order 9, Rule 13 CPC was maintainable under the explanation to Order 9, Rule 13 CPC The Supreme Court, on considering the above facts, held that an appeal, which is dismissed for default or as barred by limitation because of the dismissal of the application for condoning the delay in filing the same, cannot be treated on a par with non-filing of an appeal or the withdrawal of an appeal and the argument that since there is no merger of the decree of the trial Court in that of the appellate Court in a case of this nature and consequently, the explanation should not be applied, was also not accepted by the Supreme Court. In this view, the Supreme Court confirmed the finding of the Courts below that the petition under Order 9, Rule 13 CPC would not lie in view of the filing of an appeal against the decree by the Appellant and the dismissal of the appeal, though, for default, since dismissal for default of the appeal on the ground of it being barred by limitation cannot be equated with the withdrawal of the appeal. 4. Corollary, therefore, would be that an appeal, either dismissed for default or on the ground of it being barred by limitation, would amount to a disposal of the appeal. The Supreme Court also approved the Full Bench decision of the Kerala High Court in the case of Thambi Vs. 4. Corollary, therefore, would be that an appeal, either dismissed for default or on the ground of it being barred by limitation, would amount to a disposal of the appeal. The Supreme Court also approved the Full Bench decision of the Kerala High Court in the case of Thambi Vs. Mathew and Another, wherein it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes and an order dismissing the appeal was a decree that could be the subjected to Second Appeal and Rule 3A of Order XLI introduced by Amendment Act, 104 of 1976 to the Code did not in any way affect that principle. 5. From the above decision of the Supreme Court, it is, therefore, clear that even if the first appellate Court has dismissed the Title Appeal on the ground of limitation, the same would amount to a decree which can be a subject-matter of Second Appeal filed u/s 100 Code of Civil Procedure 6. This Court, therefore, finds that the Second Appeal is maintainable. 7. Now coming to the substantial question of law involved in the appeal, it is found that the learned Court below while declining to condone the delay in filing the appeal has not taken into consideration all the grounds set out in the application for condonation of delay. The substantial question, therefore, which arises to be determined, in this case is as follows: Whether the order passed by the lower appellate Court refusing to condone the delay, without taking into consideration, all the grounds set-forth in the application u/s 5 of the Limitation Act, can be sustained? 8. Since the Respondent No. 1 has already entered appearance, the Second Appeal was heard on merit on the above substantial question of law. 9. As this Court finds that the learned Court below has not considered all the grounds set forth in the application u/s 5 of the Limitation Act filed by the Appellant praying for condonation of delay, the said order and consequently, the order of dismissal of the appeal on the ground of delay cannot be sustained in view of the settled position that a judgment or order passed without taking any relevant material available on record is unsustainable. 10. 10. The impugned orders dismissing the application for condonation of delay and consequently, dismissing the appeal for being barred by time are set aside and the matter is remitted back to the learned District Judge to rehear the application u/s 5 of the Limitation Act by affording opportunity of hearing to all the parties concerned and pass a fresh order thereon taking into consideration all the grounds set forth in the application for condonation of delay. The learned District Judge shall take expeditious steps to dispose of the First Appeal within a period of three months from the date of production of a certified copy of this order before him. 11. The Second Appeal is accordingly, allowed, but in the circumstances without any cost. Final Result : Allowed