JUDGMENT : Mansoor Ahmad Mir, J. Mr. Dushyant Dadwal, learned counsel for the respondent, argued that the appeal is not maintainable for the reason that vide impugned judgment, limitation petition under Section 5 of the Limitation Act came to be dismissed, is not appealable as per the mandate of Order XLIII of the Code of Civil Procedure (for short “CPC”). 2. The argument, though attractive, is devoid of any force for the following reasons: 3. Appellants were facing a judgment/decree in exparte, constraining them to file an application under Order IX Rule 13 CPC alongwith an application for condonation of delay. The learned Single Judge dismissed the limitation petition and consequently, the application under Order IX Rule 13 CPC was also dismissed. 4. The appellants have remedy available with them in terms of Order XLIII Rule 1 (d) CPC. 5. The High Court of Jammu & Kashmir in a case titled as Union of India versus Nek Ram Sharma, reported in 2004 (1) JKJ 280 , has laid down the same principle. It is apt to reproduce paras 6 and 11 of the judgment herein: “6. Now the question that becomes important is where an application has been filed and rejected whether the consequence will be the same or different. Section 5 cannot be read in isolation. It has to be read conjunctively with Section 3. Where application under Section 5 is not filed or where application has been filed and rejected the natural consequence would be the dismissal of appeal or application as provided under Section 3 of the Limitation Act. If the final outcome of the rejection of application under Section 5 is dismissal of application under Order 9 Rule 13 of Code of Civil Procedure and the order of dismissal is appealable under Order 43 CPC, there is no reason why such an order will not become appealable, merely because the Court has only rejected application under Section 5 of the Limitation Act. …............. 11. After considering the ratio of the judgments referred to above, I am of the opinion that an order rejecting the application under Section 5 of the Limitation Act or for that matter condonation under any other law merges with the order that may be ultimately passed in application or the appeal. The consequence of dismissal of condonation application is rejection of an application or the appeal as the case may be. The consequence of dismissal of condonation application is rejection of an application or the appeal as the case may be. Therefore, the outcome of such rejection is upholding an order subject matter of appeal or the application. In the present case, rejection of application for condonation of delay has culminated into rejection application under Order 9 Rule 13 CPC. Admittedly an order rejecting application under Order 9 Rule 12 CPC is appealable under Order 43 (d). Thus, I am of the considered opinion that the order under appeal is appealable under Order 43 (d) Code of Civil Procedure. The appeal is accordingly admitted to hearing.” 6. A three Judge Bench of the Apex Court in the case titled as Shyam Sunder Sarma versus Pannalal Jaiswal and others, reported in (2005) 1 SCC 436 , has dealt with the issue and held as under: “8. The first question to be considered is whether an appeal accompanied by an application for condoning the delay in filing the 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. There was conflict of views on this question before the high Courts. But the Privy Council in nagendra Nath Dey v. Suresh Chandra Dey held : (AIR p. 167) "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." 8.1. These observations were referred to with approval by this Court in Raja Kulkarni v. State of Bombay. 9. The specific question involved, came to be considered by this Court in Mela Ram and Sons v. CIT. This Court held that an appeal presented out of time is an appeal and an order dismissing it as time barred is one passed in an appeal. This court referred to and followed the view taken by the Privy Council and by this Court in the two respective decisions above referred to. This Court held that an appeal presented out of time is an appeal and an order dismissing it as time barred is one passed in an appeal. This court referred to and followed the view taken by the Privy Council and by this Court in the two respective decisions above referred to. This Court quoted with approval the observations of Chagla C.J. in K.K. Porbunderwalla v. CIT (ITA p. 66) to the following effect: (SCR p. 176) "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 Section 31 and the effect of that order was to confirm the assessment which had been made by the Incometax Officer." 9.1. In Sheodan Singh v. Daryao Kunwar rendered by four learned judges of this court, one of the questions that arose was whether the dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was a decision in the appeal. This Court held: (SCR pp 308 H309B) "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." 9.2. In Board of Revenue v. Raj Bros. Agencies this Court approved the decision of the Madras High Court which had applied the principle stated in Mela Ram and sons (supra). 10. The question was considered in extenso by a full bench of the Kerala High court in Thambi v. Mathew. 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 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.” 7. A learned Single Judge of this Court in CMPMO No. 271 of 2015, titled as Jyotsna Industrial Training Central versus Delhi Press Prakashan Pvt. Ltd., decided on 8th January, 2016, has also laid down the same proposition of law. 8. Having said so, it is held that the appeal is maintainable. 9. The appeal stands already admitted on 28th September, 2016. List for final hearing on 5th July, 2017.