ORDER : Goutam Bhaduri, J. Heard on admission. 2. The instant appeal is against the order dated 08.07.2015 passed by the Court of Additional District Judge (FTC), Rajnandgaon District Rajnandgaon against the judgment and decree dated 19.11.2019 passed in Civil Suit No. 7-A/2006 by the Civil Judge, Class-I, Ambagarh Chowki, Chhattisgarh. 3. The first appellate Court by order dated 08.07.2015 decided an application under Order 41, Rule 3(a) of the Code of Civil Procedure wherein the appellate Court dismissed the first appeal as barred by time and refused to condone the delay. The instant appeal was also filed with a delay of 98 days and an application for condonation of delay has been filed for condoning the delay in filing the appeal. 4. Since there was delay in filing the appeal, notices were issued to respondent No. 1 and after issuance of notice respondents entered appearance. 5. The primary submission made by learned counsel for the respondent No. 1 is that the second appeal not lie since the first appeal was not decided on merits, as such, it was contended that the appeal be dismissed as not maintainable at the threshold and the appellants may take recourse to the other remedy available and not by way of second appeal. 6. Thus the entire question revolves around the issue as to whether the second appeal is maintainable if the application for condonation of delay has been dismissed in first appeal and consequently the first appeal also stands dismissed ? Since there were divergent views in different case laws, as such, Ms. Sharmila Singhai, Advocate, was appointed as Amicus Curiae to assist the Court to ascertain as to whether or not the second appeal is maintainable ? 7. The learned Amicus Curiae Ms. Sharmila Singhai as also counsel for the appellants Mr. Aditya Bharadwaj went through various case laws and submit that the second appeal be maintainable even if the first appeal is dismissed on the ground of limitation whereas Mr. Parag Kotecha counsel appearing for the respondent submit that the second appeal is not maintainable at the threshold and the appellant has other efficacious remedy available except the second appeal. 8. Aditya Bharadwaj went through various case laws and submit that the second appeal be maintainable even if the first appeal is dismissed on the ground of limitation whereas Mr. Parag Kotecha counsel appearing for the respondent submit that the second appeal is not maintainable at the threshold and the appellant has other efficacious remedy available except the second appeal. 8. Tracing the history of cases of like nature, If we refer to the decision reported in 1956 SC 367, M/s Mela Ram & Sons v. Commissioner of Income Tax, Punjab reported with reference to Income Tax Act wherein the appeal was filed beyond the period of limitation, it indicate that right of appeal is substantive right and the creature of the statute. In the said case, it was further held that the 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. In the said case, following the principle laid down in AIR 1932 PC 165 , Nagendranath v. Suresh Chandra while construing the word, 'appeal' in the third column of Article 182, it was interpreted 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 it was concluded that an appeal presented out of time is an appeal and an order dismissing it as time-barred is one passed in appeal. 9. Further in case of Sheodan Singh v. Daryao Kunwar, AIR 1966 S.C. 1332 the question arose whether dismissal of appeal from a decree on a ground that the appeal was barred by limitation whether is a decision in appeal. The Court held that "we are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing it must be held that such dismissal when it confirms the decision of the trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal. 10. 10. Similar question arose in 1996 MPLJ 764 , Maniram v. Mst. Fuleshwar (para 26) wherein the Court followed the dictum laid down by the Supreme Court in AIR 1956 SC 367 , Melaram & Sons v. CIT, Punjab (supra). Para 26 is relevant here and quoted below: "26. The reference is, therefore, answered as below: "That a Second appeal lies to the High Court even if the First Appeal is dismissed as barred by limitation after rejection of the application for condonation of delay filed either under Section 5 of the Limitation Act or under Order 41, Rule 3A of the Code of Civil Procedure." 11. Further in a case law reported in AIR 2005 SC 226 , Shyam Sunder Sarma v. Pannalal Jaiswal the Supreme Court discussed the decision rendered by the Full Bench of Kerala High Court in Thambi v. Mathew, AIR 1988 Ker 48 wherein the question was considered in extenso after referring to the relevant decisions and 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 subject of second appeal. It was also held that the Rule 3A Order 41 of C.P.C. introduced by an Amendment Act 104 of 1976 to the Court, did not in any way affect that principle". In Shyam Sunder Sarma (supra), the Supreme Court further held thus in paras 10, 11 & 12. "10. ................................... An appeal registered under Rule 9 Order 41 of the Code had to be disposed of according to law and 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 emerged 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 appeal. 11. Thus, the position that emerged 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 appeal. 11. Learned counsel for the appellant relied on the Full Bench decision of the Calcutta High Court in Mamuda Khateen and others v. Beniyan Bibi and others, AIR 1976 Cal 415 to contend that an order rejecting a time barred memorandum of appeal consequent upon refusal to condone the delay in filing that appeal was neither a decree nor an appellable order. On going through the said decision it is seen that though the Full Bench referred to the divergent views on that question in the Calcutta High Court prior to the rendering of the decision of this Court in M/s. Mela Ram and Sons (supra) had not considered the decision of this Court in Raja Kulkarni, AIR 1954 SC 73 and in M/s. Mela Ram and Sons (supra), in coming that conclusion. In fact it is seen that there was no discussion on that aspect as such, though there was a reference to the conflict of view in the decisions earlier rendered by the Calcutta High Court. Since the ratio of that decision runs counter to the principles laid down by this Court in Messers Mela Ram and Sons (supra), obviously the same could not be accepted as laying down a correct law. 12. Learned counsel placed reliance on the decision in Ratansingh v. Vijaysingh and others, (2001) 1 SCC 469 rendered by two learned Judges of this Court and pointed out that it was held therein that dismissal of an application for condonation of delay not amount to a decree and therefore, dismissal of an appeal as time barred was also not a decree. That 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. But we must point out with respect that the decisions of this Court in Messers Mela Ram and Sons and Sheodan Singh (supra) were not brought to the notice of their Lordships. But we must point out with respect that the decisions of this Court in Messers Mela Ram and Sons and Sheodan Singh (supra) were not brought to the notice of their Lordships. The principles laid down by a three Judge Bench of this Court in M/s. 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 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 Dev v. Suresh Chandra Dev (supra) was referred to, it was not supplied 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 decision in Messers Mela and Sons 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." 12. Learned counsel for the respondent has placed reliance on a Full Bench decision rendered in AIR 2004 Kar 75 , The Commissioner of Hubli Dharwad Municipal Corporation v. Shrishail and others which lays down that the order of dismissal of first appeal as barred by limitation not amount to decree and therefore the second appeal not be maintainable and the proper course be the remedy of revision. The said view was adopted on the basis of decision in case of Ratan Singh v. Vijay Singh, AIR 2001 SC 279 wherein it was held that rejection of application for condonation of delay and consequent dismissal of appeal as time barred is not a decree. The said decision of Ratan Singh (supra) was considered in (2005) 1 SCC 436 , Shyam Sundar Sarma v. Pannalal Jaiswal (supra) and it was held that the principles laid down in the said case not be applicable and the decision rendered by two Judges Bench in AIR 2001 SC 279 , Ratan Singh (supra) can be held to be laying down the correct law since the decision rendered by 3 Judges Bench in M/s. Mela Ram and Sons, AIR 1956 SC 370 (supra) was not brought to the notice. The said dictum was also followed in State of Rajasthan v. Rajpal Singh Chauhan reported in AIR 2011 Raj 101 which followed the law laid down in AIR 2004 Kar 75 (supra) and it was held that in the event of dismissal of the first appeal u/s 5 of the Limitation Act, second appeal not lie. At later stage, the same judgment was further recalled back in the year 2011 and the same is reported in AIR 2012 (NOC) 162 (Raj) on the ground that the decision reported in AIR 2001 SC 279 , Ratan Singh v. Vijay Singh (supra) was over-ruled in Shyam Sunder Sarma v. Pannalal Jaiswal, AIR 2005 SC 226 (supra). 13. Therefore, in view of the aforesaid discussion it is held that the Second Appeal be maintainable even when the first appeal is dismissed as time barred. 14. In the result, the appeal is held to be maintainable. 15. Heard on application for condonation of delay in filing the appeal. The second appeal is delayed by 98 days. For the reasons stated in the application, the delay in filing the appeal is condoned. 16. The appeal is admitted for hearing on the following substantial question of law : "Whether the first appellate Court had exercised its jurisdiction fairly and judiciously while dismissing the application seeking condonation of delay ?"