JUDGMENT Utpalendu Bikas Saha, J.:- The instant petition, under Article 227 of the Constitution of India, is directed against the order dated 21.09.2004 passed by the learned District Judge, South Tripura, Udaipur in Civil Misc. Case No. 27/2004 wherein the District Judge rejected the application made under Section 5 of the Limitation Act for condonation of delay of 82 days in preferring appeal and consequently dismissed the appeal being Title Appeal No. 22/2004 preferred against the judgment and decree dated 27.03.2004 and 10.05.2004 respectively, passed by the Civil Judge, Jr. Div., South Tripura, Udaipur in Title Suit No. 03/2002. 2. Heard Mr. R Datta, learned counsel for the defendant-petitioners as well as Ms. S. Deb (Gupta), learned counsel for the plaintiff-respondents. 3. Brief facts of the case needed to be discussed are as follows:- The respondents, being plaintiffs, filed a suit being Title Suit 03/2002 before the Civil Judge, Jr. Div. South Tripura, Udaipur for declaration of title and recovery of possession and the said suit was contested by the petitioners herein, as defendants, in the aforesaid suit. After framing issues and hearing the parties, the Civil Judge, Jr. Div. allowed the suit vide his judgment and decree dated 27.03.2004 and 10.05.2004, respectively. The petitioners, being aggrieved, as defendants filed an appeal against the aforesaid judgment and decree before the District Judge, South Tripura, Udaipur along with a prayer for condonation of delay of 82 days. Upon receipt of the memo of appeal and the application under Section 5 of the Limitation Act for condonation of delay, the District Judge, South Tripura, Udaipur registered the appeal as Title Appeal No. 22/2004 and the application for condonation of delay as Civil Misc. case No. 27/2004, respectively. Thereafter, the application for condonation of delay was taken up for hearing and after hearing the parties, the District Judge by a detailed order rejected the prayer for condonation of delay vide his order dated 21.09.2004 in Civil Misc. Case No. 27/2004 and consequent thereto dismissed the appeal, which was not admitted for hearing, vide his order dated 21.09.2004. Being aggrieved by the aforesaid order of the District Judge, the petitioners, who were the defendants in the aforesaid Title Suit 03/2002 filed the instant writ petition. 4. Case No. 27/2004 and consequent thereto dismissed the appeal, which was not admitted for hearing, vide his order dated 21.09.2004. Being aggrieved by the aforesaid order of the District Judge, the petitioners, who were the defendants in the aforesaid Title Suit 03/2002 filed the instant writ petition. 4. As the subject matter of this writ petition is the order dated 21.09.2004, it would be proper for this Court to reproduce the operative part of the said order which is as follows:- .....However several rules are there for and against the matter of condonation of delay. The main matter for consideration is that whether the party has no laches and negligence on their part in preferring the appeal in time. In the instant case I find that there were three defendants and all of them were able and one of them is also a Police Officer working in the Police Department. They have cause further delay by not consulting the Advocate here at Udaipur but consulting another Advocate at Agartala and thereafter they applied for certified copy. They took it to Agartala, thereafter the draft was prepared, finalization of draft was there and thereafter they filed this appeal here. So it appears that the defendant-appellants are found negligent and as such they are not interested to file appeal to fight the case. In reality such circumstances tends to prove that they have filed this appeal with this petition for condonation of delay only to drag the execution case which has filed by the plaintiff-respondents. Under this circumstances I find that the petitioners side could not show sufficient cause for delay in filing the appeal and it appears that they are not only negligent but also sleeping over their right and as such the petition for condonation of delay is rejected. Thus this Misc. Case is disposed of. Consequently the appeal petition is not admitted for hearing and as such the appeal petition is also not entertained. .......... 5. Mr. Thus this Misc. Case is disposed of. Consequently the appeal petition is not admitted for hearing and as such the appeal petition is also not entertained. .......... 5. Mr. Datta, while urging for setting aside the impugned order wherein the prayer for condonation was rejected and consequent thereto, the appeal was dismissed, would contend that though the delay was not condoned and consequent thereto, the appeal was dismissed not on merit, would not be a decree passed in appeal and thus second appeal would not lie under Section 10 of the Civil Procedure Code (for short, "the Code") and the said order of dismissal can be challenged by way of a writ petition under Article 227 of the Constitution. 6. He further submits that an order of dismissal of an appeal consequent to dismissal of a condonation application being not a decree, the question of drawing decree under Order 41 Rule 35 would also not arise. He again contended that the second appeal under Section 100 of the Code lies against the decree, not against an incidental order like the order impugned herein. He finally contended that when the appeal is not dismissed on merit, the only remedy is under Article 227 of the Constitution. Thus, it would be proper for the Court to allow the application for condonation of delay as the delay has been properly explained by the defendant-petitioners and direct the appellate court for hearing the appeal on merit. 7. In support of his aforesaid contention, he has placed reliance on the decision of the Apex Court in Ratansingh V. Vijaysingh, AIR 2001 SC 279 wherein the Apex Court considering sub-section (2) of Section 2 of the Code held that "rejection of application for condonation of delay will not amount to a decree and consequently, dismissal of an appeal as time barred is also not a decree." The aforesaid view is expressed by the Apex Court in paragraph 11 of the said decision which is reproduced hereinunder:- 11. 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. 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 ) "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. 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. 8. He has also placed reliance on the decision in State of Rajasthan and Ors. V. Rajpal Singh Chauhan, AIR 2011 Rajasthan 101 wherein learned counsel for the respondents therein submitted that second appeals directed against the judgments passed by the first appellate court, whereby first appeals have been dismissed as barred by limitation is not maintainable in view of the decision of the Apex Court in Ratansingh (supra) and the Full Bench decision of the Karnataka High Court in case of the Commissioner, Hubli-Dharwad Municipal Corpn. V. Shrishail and Ors., AIR 2004 Karnataka 75 (Full Bench). The Rajasthan High Court after hearing the parties, held that the second appeal is maintainable against the decree and not against the order rejecting application for condonation of delay, consequently dismissal of appeal as time barred is not a decree. For better appreciation of the aforesaid decision of the Rajasthan High Court it would be proper to reproduce paragraph-12 of the said report which is as under:- 12. Full Bench of Karnataka High Court in The Commissioner, Hubli-Dharwad Municipal Corporation V. Shrishail & Others ( AIR 2004 Kar 75 ) (supra) considered the same controversy and while relying upon above judgment of Hon’ble Apex Court in Ratansingh V. Vijaysingh & Others(supra) held that order of dismissal of first appeal as barred by limitation is not a decree and second appeal against said order is not maintainable. Full Bench further observed that even if formal decree is drawn, the second appeal is not maintainable and proper course is to file revision petition under Section 115 C.P.C. Para 12 of the Judgment is reproduced as under: "12. The question as to whether dismissal of Appeal consequent upon dismissal of application for condonation of delay would amount to decree has been specifically considered and decided by the Supreme Court in Ratansingh V. Vijay Singh AIR 2001 SC 279 , wherein after referring to ’decree’ as defined in S. 2(2) Civil Procedure Code in para 10, the Supreme Court has observed as follows in para 11 and it would answer the question to be determined in this reference:- "............................... " In view of above decision of the Supreme Court, the question for reference is answered by holding that an order rejecting the Memorandum of Appeal following rejection of application for condonation of delay in filing the appeal under Section5 of the Limitation Act, would not be a decree passed in Appeal and hence, Second Appeal would not lie under Section 100 CPC and order would be revisable under Section 115 CPC. When once it is held that order dismissing appeal as barred by time, is not a decree, the question of drawing a decree under Order 41, Rule 35 would not arise and mere drawing of decree in the prescribed form would not make such an order a decree and any decree drawn pursuant to such an order is immaterial and would not debar the aggrieved party to file Revision. 9. Per contra, Ms Deb (Gupta) while raising the question of maintainability of the instant writ petition submits that the order of dismissal of the memorandum of appeal on the ground of limitation has to be considered as a decree because the decree of the trial court is confirmed and the rights of the parties in regard to the matters in controversy are finally determined by the order dismissing the appeal and the said dismissal of condonation application is dismissal of appeal for all purpose. In support of her aforesaid contention she has referred Shyam Sundar Sarma Vs. Pannalal Jaiswal and Ors, (2005) 1 SCC 436 . 10. She further submits that the law laid down by the Apex Court in Ratansingh (supra) is not a good law as in the said decision the Apex Court did not consider its earlier judgment in Mela Ram and Sons Vs. CIT, 1956 SCR 166 and the decision in Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 as well as its decision in Board of Revenue V. Raj Bros. Agencies, (1973) 4 SCC 216 . She finally contended that the Apex Court in Shyam Sundar Sarma (supra) considering the decision of Ratansingh (supra) as well as its earlier decision in Mela Ram and Sons (supra) and Sheodan Singh (supra) reiterated its earlier views that an appeal filed along with an application for condoning delay in filing that appeal when dismissed on refusal to condone the delay is nevertheless a decision in the appeal confirming the decree passed by trial court on merit. She also submits that such dismissal of an appeal is a decree and against a decree when provisions for appeal are there, a petition under Article 227 is not maintainable. The only remedy is a second appeal as prescribed in the Code. 11. She also submits that such dismissal of an appeal is a decree and against a decree when provisions for appeal are there, a petition under Article 227 is not maintainable. The only remedy is a second appeal as prescribed in the Code. 11. Having heard the learned counsel for the parties and points raised by them for consideration before this Court, question arises are: i) Whether an application for condonation of delay, being rejected and consequent thereto dismissal of the appeal, is a decree? ii) If such dismissal is a decree then whether a petition under Article 227 of the Constitution is maintainable? It appears from the law reports cited by the learned counsel for the parties that there is a sharp conflict in decisions of the various High Courts as well as the Apex Court as to whether the dismissal of memorandum of appeal as time barred and consequent thereto dismissal of appeal would be a decree or not? 12. In Banwarilal Bhoid Vs. P. Neelkantham and Ors., AIR 1965 ORISSA 102, a Division Bench headed by Justice Narasimham, Hon’ble Chief Justice the then, while deciding a revision against the order of the District Judge of Koraput dated 10.10.1962 rejecting a petition under Section 5 of the Limitation Act for condoning delay in filing Title Appeal before him against the judgment of the Munisiff of Jeypore rejecting the memorandum of appeal as filed beyond time, question came up regarding the maintainability of the revision petition on the ground that the order of the District Judge was a "decree" as defined in Section 2(2) of the Code and that consequently the aggrieved party had the right to file a second appeal and that no revision lay. As the question involved examination of the correctness of the decision of the Single Judge of Orissa High Court in Achyuta Dhangada Majhi V. Sibram Dhangadamajhi, ILR (1962) Cut 818, the revision was referred to the Division Bench and the Division Bench headed by Justice Narasimham while holding that the revision petition is not maintainable took note of various decisions of various high courts. As some of the decisions of the various High Courts referred to in the judgment of Banwarilal Bhoid (supra) would be profitable to consider as to whether the dismissal of appeal as time barred is a decree or not, paragraph 5 and 6 of the said judgment are reproduced hereinunder: 5. As early as 1884 the Allahabad High Court in Gulab Rai v. Mangli Lal, ILR 7 All 42 considered whether the dismissal of a memorandum of appeal as time-barred would be a "decree". They answered this question in the affirmative for two reasons. Firstly they held, relying on section 4 of the Limitation Act, that the dismissal of an appeal as time-barred (which is mandatory) disposes of the appeal finally so far as the appellate Court is concerned, and would therefore come within the first part of the definition of the expression "decree". They were also inclined to accept the alternative argument that it would come within the scopes of the deeming clause, on the principle that the rejection of a plaint mentioned in the deeming clause must be held to include rejection of memorandum of appeal, by virtue of Section 54(c) and Section 582 of the old Civil Procedure Code, 1882 which correspond to Order 7, Rule 11 and Section 107(2) of the New Code. This decision has stood the test of time and has been uniformly followed by all the High Courts without a single dissentient voice till the recent judgment of this Court in ILR (1902) Cut 818 cited above. (emphasis supplied) 6. In this connection, Saminatha Ayyar v. Venkatasubba Ayyar, ILR 27 Mad 21; Gunga Dass Dey v. Ramjoy Dey, ILR 12 Cal 30 and Raghunath Copal v. Nilu Nathaji, ILR 9 Bom 452 may be referred to. In ILR 27 Mad 21 which is of the year 1903 the contrary view was noticed and it was observed that "the balance of authority is against this view". The learned Judges held that in view of the decisions of almost all the leading High Courts in India, they were inclined to say that the order would be a "decree". The same question came up for consideration before the Calcutta High Court in 1913 in Rakhal Chandra Ghosh v. Ashutosh Ghosh, 17 Cal WN 807. The learned Judges held that in view of the decisions of almost all the leading High Courts in India, they were inclined to say that the order would be a "decree". The same question came up for consideration before the Calcutta High Court in 1913 in Rakhal Chandra Ghosh v. Ashutosh Ghosh, 17 Cal WN 807. The learned Judges, while relying on ILR 12 Cal 30 further observed as follows: "However that may be, the order passed by the lower appellate Court construed the decree of the court of first instance and thereby conclusively, determined the rights of the parties with regard; to the matters in controversy in the suit. Had the appeal been admitted and then dismissed on a preliminary objection raised at the hearing that the appeal was filed out of time, there could be no question that the order dismissing the appeal though on a preliminary point, would be a decree and we do not see why an order dismissing an appeal before it is admitted should not be considered a decree. ’In either case the decree of the Court of first instance is confirmed and the rights of the parties with regard to matters in controversy, are finally determined by the order dismissing the appeal. (emphasis supplied) These observations, specially the portions underlined, (here into ’ ’) would apply fully to the facts of the case. I have already quoted the operative portion of the decree which, while dismissing the appeal as time-barred, expressly says that the judgment and decree of the Court of the Munsif of Jeypore are affirmed. It is true that there were several points in controversy before the learned Munsif and the appellant wanted to agitate all these points in the appeal also. But being conscious that the appeal was filed beyond time, he knew that unless he could succeed in getting the delay condoned under Section 5 of the Limitation Act, the appeal was likely to be rejected. Hence, he filed the application under Section 5 which was rejected after being heard fully, and in the very same order the appeal was rejected as time-barred, and then the aforesaid decree was drawn up. Hence, he filed the application under Section 5 which was rejected after being heard fully, and in the very same order the appeal was rejected as time-barred, and then the aforesaid decree was drawn up. Thus, though there was no discussion of the merits of the case in the appellate Court, nevertheless the judgment of the: lower court was completely affirmed, and thereby the order of the appellate Court finally determined the rights of the parries so far as that Court was concerned. (emphasis supplied) 13. This Court has considered the decision in Rajpal Singh Chauhan (supra) as referred to by Mr. Datta. Upon going through the judgment referred above it appears that learned Single Judge of the Rajasthan High Court while deciding the issue as to whether second appeals directed against the judgment passed by the first appellate court wherein first appeals of the appellants therein dismissed as barred by limitation is maintainable or not, only considered the judgment in Commissioner, Hubli-Dharwad Municipal Corpn. (supra) wherein the Karnataka High Court followed the judgment of the Apex Court in Ratansingh (supra) which was decided by the Apex Court without considering its earlier decision Mela Ram and Sons (supra) and the decision in Sheodan Singh (supra). 14. On proper scrutiny of the judgment of Ratansingh (supra) it also appears that their Lordships held, inter alia, that "rejection of application for condonation of delay will not amount to a decree and consequently, dismissal of an appeal as time barred is also not a decree" on the basis of the decision of the Calcutta High Court in Mamuda Khateen and Ors. V. Beniyan Bibi and Ors., AIR 1976 CALCUTTA 415 and the said decision of the Calcutta High Court was considered in Shyam Sundar Sarma (supra) as referred to by Ms Deb (Gupta) while considering the case of Ratansingh (supra). 15. In Ratansingh (supra) the Apex Court had no opportunity to consider its earlier judgments in Mela Ram and Sons (supra) as well as Sheodan Singh (supra) as those judgments were not placed before their lordships by the parties at the time of hearing. 15. In Ratansingh (supra) the Apex Court had no opportunity to consider its earlier judgments in Mela Ram and Sons (supra) as well as Sheodan Singh (supra) as those judgments were not placed before their lordships by the parties at the time of hearing. In Mela Ram and Sons (supra) the Apex Court while considering the provisions of Section 31 and Section 33 of the Income Tax Act held, after considering various decisions, inter alia, "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. In the aforesaid case, the Apex Court also considered the decision of the Privy Council in Nagendra Nath Dey V. Suresh Chandra Dey, AIR 1932 PC 165 , and considered regarding the construction of the word "appeal" which is as under: There is no definition of appeal in the Civil Procedure Code, 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. Therefore, even if the appeal is presented beyond the period of limitation by a party and considered to be an incompetent one still it is an appeal and an order of dismissal of such an appeal as time barred is one passed in an appeal. 16. In Sheodan Singh (supra) a Bench of four Hon’ble Judges whiles considering the judgment of the Allahabad High Court and considering the question of res judicata as one of the appeals was dismissed on the ground that it was filed beyond the period of limitation while other was dismissed on the ground that the appellant therein had not taken steps to print the records, noted as under:- It is true that the High Court dismissed the appeals arising out of suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself not be on the merits, the result of the High Court’s decision is to confirm the decision on the issue of the title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial Court on the merits, whatever may be the reason for the dismissal of the appeals arising from suits Nos. 77 and 91. In these circumstances though the order of the High Court itself may not be on the merits, the decision of the High Court dismissing the appeals arising out of suits Nos. 77 and 91 was to uphold the decision on the merits as to issue of title and therefore it must be held that by dismissing the appeals arising out of suits Nos. 77 and 91 the High Court heard and finally decided the matter for it confirmed the judgment of the trial Court on the issue of title arising between the parties and the decision of the trial court being on the merits the High Court’s decision confirming that decision must also be deemed to be on the merits. To hold otherwise would make res judicata impossible in cases where the trial Court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial Court on the merits. It is well settled that where a decree on the merits is appealed from, the decision of the trial Court loses its character of finality and what was once res judicata again becomes res sub judice and it is the decree of the appeal Court which will then be res judicata. It is well settled that where a decree on the merits is appealed from, the decision of the trial Court loses its character of finality and what was once res judicata again becomes res sub judice and it is the decree of the appeal Court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming in toto the trial court’s decision given on merits, the appeal court’s decree cannot be res judicata, the result would be that even though the decision of the trial Court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicata. We cannot, therefore, accept the contention that even though the trial Court may have decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties. We are therefore of the opinion that where a decision is given on the merits by the trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal. 17. 17. In Shyam Sundar Sarma (supra) the Apex Court also considered the submission of the learned counsel for the respondent-plaintiff therein, who placed reliance on the decision in Ratansingh (supra) by two learned Judges of the Apex Court and pointed out that it was held therein that the dismissal of an application for condonation of delay would not amount to a decree and therefore dismissal of an appeal as time-barred was also not a decree. While considering the said aspect the Apex Court said that the decision was rendered in the context of Article 136 of the Limitation Act, 1963 and in the light of the departure made from the previous position obtaining under Article 182 of the Limitation Act, 1908 and also noted inter alia, that "but we must point out with respect that the decisions of this Court in Mela Ram and Sons ( AIR 1956 SC 367 ) and Sheodan Singh ( AIR 1966 SC 1332 ) were not brought to the notice of their Lordships. The principle laid down by a three-Judge bench of this Court in Mela Ram and Sons (supra) and that stated in Sheodan Singh (supra) was, thus, not noticed and the view expressed by the two-Judge Bench, cannot be accepted as laying down the correct law on the question. Of course, their Lordships have stated that they were 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 definition of a decree obtaining in the Code. Thereafter, noticing the decision of the Calcutta High Court above-referred to, Their Lordships in conclusion apparently agree with the decision of the Calcutta High Court. Though the decision of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey ( AIR 1932 PC 165 ) was referred to, it was not applied on the ground that it was based on Article 182 of the Limitation Act, 1908, and there was a departure in the legal position in view of Article 136 of the Limitation Act, 1963. But with respect, we must point out that the decision really conflicts with the ratio of the decisions in Mela Ram and Sons (supra) and Sheodan Singh (supra) and another decision of this Court rendered by two learned Judges in Rani Choudhury V. Lt. Col. But with respect, we must point out that the decision really conflicts with the ratio of the decisions in Mela Ram and Sons (supra) and Sheodan Singh (supra) and another decision of this Court rendered by two learned Judges in Rani Choudhury V. Lt. Col. Suraj Jit Choudhury, (1982) 2 SCC 596 . In Essar constructions v. N.P. Rama Krishna Reddy, (2000) 6 SCC 94 brought to our notice, two other learned Judges of this Court left open the question. Hence, reliance placed on that decision is of no avail to the appellant." 18. In the said judgment, the Apex Court while considering the judgment of Ratansingh (supra), has considered the question as to whether an appeal accompanied by an application for condoning the delay in filing an appeal is an appeal in the eye of law, when the application for condoning the delay in filing the appeal is dismissed and consequently the appeal is dismissed as being time-barred by limitation in view of Section 3 of the Limitation Act held that, an order passed in the condonation application is an order passed in the appeal and thereby approved its earlier decision in Mela Ram and Sons (supra), Sheodan Singh (supra) as well as Rani Choudhury (supra). In paragraph 10 of the said judgment, the Apex Court also considered the decision of the Full Bench of the Kerala High Court in Thambi v. Mathew, (1987) 2 KLT 848 (FB) which is as under:- 10. The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi v. Mathew, ( 1987 2 KLT 848 (FB). Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of the law for all purposes and an order dismissing the appeal was a decree that could be the subject of a second appeal. It was also held that Rule 3A of Order 41 introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. It was also held that Rule 3A of Order 41 introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal registered under Rule 9 of Order 41 of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal. (emphasis supplied) 19. Now let us consider Order 41 rule 3A of the Code which only mandates that when an appeal is presented after expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. When an application has been made under sub-rule (2) of Order 41 rule 3A of the Code and if the Court did not reject the application for condonation of delay without notice thereof, notice 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 of the Code. In view of the above provisions of sub-rule (1) and (2) of 3A, it is clear that the said provisions have been incorporated only to save the interest of the decree holder-respondent and provide for an application for condonation of delay to be decided before proceeding to decide the appeal itself under rule 11 or rule 13 of Order 41 of the Code so that the decree holder-respondent may not be required to contest the appeal, in case the finding regarding application for condonation of delay is against the appellant-judgment-debtor and the appeal is consequently dismissed on that ground. 20. There is no doubt that the aforesaid provisions did not contemplate dismissal of appeal itself which has to be done under rule 11 or rule 13 of Order 41 of the Code. 20. There is no doubt that the aforesaid provisions did not contemplate dismissal of appeal itself which has to be done under rule 11 or rule 13 of Order 41 of the Code. If the decision in the application for condonation of delay filed under Order 41 rule 3A of the Code or Section 5 of the Limitation Act is decided, the appeal has to be disposed and decided in terms of Order 41 rule 11 or rule 13 of the Code and if under rule 11 the appeal is dismissed, such dismissal of the appeal is nothing but confirmation of the decree of the Court of first instance and the rights of the parties with regard to the matters in controversy is decided finally so far as the said appeal court is concerned. 21. More so, the petitioner, who was the appellant before the first appellate court, was aware that the appeal which was filed beyond the period of limitation with the aid of an application under Section 5 of the Limitation Act, unless he could succeed in getting the delay condoned the appeal is likely to be rejected. Thus, though there was no discussion on merits of the case in the appeal, nevertheless the judgment of the lower court was completely affirmed and thereby the order of the appellate Court finally determined the rights of the parties so far as that Court was concerned. More so, by way of amendment of Order 41 rule 1 of the Code, the legislature said that an appeal can be preferred accompanying a copy of the judgment, meaning thereby, that ’decree’ is not required for preferring appeal and such amendment is done in the year 1999 which was given effect from 01.07.2002 and the present petition was filed in the year 2004, thus, the petitioner could have easily filed an appeal instead of preferring this petition. 22. So, according to this Court, dismissal of an application for condonation of delay and consequent thereto dismissal of appeal is a decree and against such a decree a second appeal lies. When the statute prescribed an appeal against the said decree then a petition under Article 227 of the Constitution is not permissible. 22. So, according to this Court, dismissal of an application for condonation of delay and consequent thereto dismissal of appeal is a decree and against such a decree a second appeal lies. When the statute prescribed an appeal against the said decree then a petition under Article 227 of the Constitution is not permissible. The aforesaid view of this Court gets support from the decision of the Apex Court in Miss Maneck Custodji Surjarji V Sarafazali Nawabali Mirza, AIR 1976 SC 2446 wherein the Apex Court while considering the order passed by the Bombay High Court disposing a Special Civil Application exercising its jurisdiction under Article 227 of the Constitution, noted inter alia, that "it is very difficult to appreciate the reasoning behind the order made by the High Court. It is to say the least an extraordinary order which flies in the face of law and judicial procedure. The respondent had clearly a legal remedy available to him by way of an appeal against the decree of the City Civil court and this remedy was not only adequate but more comprehensive than the one under Art. 227 of the Constitution. Even so, for some inexplicable reasons, the respondent chose to prefer a Special Civil Application under Art. 227 of the Constitution and Vaidya, J., entertained the Special Civil application and granted relief to the respondent casting to the winds the well-settled principle that the High Court does not ordinarily, in exercise of its discretion, entertain a special civil application under Art. 227 of the Constitution where an adequate alternative legal remedy is available to the applicant. It is true that this principle is not rigid and inflexible and there can be extraordinary circumstances where despite the existence of an alternative legal remedy, the High Court may interfere in favour of an applicant, but this was certainly not one of such extraordinary cases. It is indeed difficult to see how the learned Judge could entertain a Special Civil Application against a decree passed by a subordinate court when the procedural law allows an appeal against it and that appeal lies to the High Court itself. It is indeed difficult to see how the learned Judge could entertain a Special Civil Application against a decree passed by a subordinate court when the procedural law allows an appeal against it and that appeal lies to the High Court itself. It must be realized that the jurisdiction under Art.227 of the Constitution is an extraordinary jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked." As the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions, it must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice where grave injustice would be done unless the High Court interferes. 23. More so, the High Court can only interfere with an order of a court subordinate to it when any order or judgment is passed without jurisdiction or on the face of the record such an order is erroneous or a perverse one. In the instant case the Court of appeal, at the first instance, exercises the jurisdiction vested on it and decided the application for condonation of delay on merit and thereafter dismissed the appeal in exercising its jurisdiction under Order 41 rule 11. Thus, the petition under Article 227 is not maintainable. 24. In view of the above discussion, the instant writ petition is dismissed as the same is not maintainable. The stay order passed by this Court earlier stands vacated. Send down the LCR. No order as to costs.