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Judgment
N.G. Das, J.—This application in revision u/s 115 of CPC is directed against the order of learned District Judge, West Tripur, Agartala dated 2.5.1995 passed in Title Appeal No. 79 of 1994 where-by learned District Judge dismissed the prayer for condo nation of the delay in presenting the memo of appeal and also the appeal itself.
I have heard Mr. K.N. Bhattacharjee, the learned Senior Central Government Standing Counsel appearing on behalf of the Petitioners and M.B. Das. the learned senior counsel appearing on behalf of the Respondent.
The suit out of the which this revision Petition has arisen was filed by the Respondent sometime in the year 1978 for a decree declaring his order of Dismissal from the service as void and bad in law and also for a decree lor Arrears of pay with a declaration that he should be deemed to be in continuous service with effect from 13.11.72. The suit was contested by the present Petitioners. Learned trial Court, however, after appreciation of the evidence on record, decreed the suit by his judgment and decree dated 6th of January, 1994
Aggrieved by this judgment, the present Petitioners preferred an appeal before the learned District Judge on 3.12.1994 along with an application for condonation of delay in presenting the memo of appeal. Learned District Judge by his order dated 3.12.94 registered the memo of appeal as Title Appeal Subject to the rectification of some defects in the affidavit. Thereafter the Learned District Judge rejected the application for condonation of the delay (sic) Presenting the memo of appeal by his order dated 2.5.1995 and as a consequence of that order he also dismissed the appeal.
Mr. K.N. Bhattiacharjee, the learned Senior Central Government Standing Counsel appearing on behalf of the Petitioners has contended that the order of learned District Judge is not only bad in law but it suffers from (sic)rial irregularity as he ignored some valid grounds without assigning (sic). But Mr. B. Das, the learned senior counsel appearing on behalf of the Respondent has contended that the order of learned District Judge against (sic) the Petitioners have filed this revision Petition is nothing but a decree and hence no revision lies against this order. The contention of Mr. Bhattacharjee on the other hand is that the learned District Judge did not pass any decree and hence the order cannot be characterised to be a decree. It has, therefore, been quite-strenuously urged by Mr. Bhattaeharjee that the impugned order is not a decree and hence a revision lies.
In view of the rival contentions as pointed out above it would be advantageous at this stage to look into the definition of the decree which is defined u/s 2(2) of CPC Section 2(2) of CPC reads:
"decree" means the formal expression of an adjudication which, so fa(sic) as regards the Court expressing it, conclusively determines the 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 reflection 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 ****
A perusal of the definition of the decree as quoted above will show that rejection of a plaint is deemed to include u/s 2(2) of CPC Therefore by virtue of the provisions of Section 107 read with order VII Rule 11 of CPC it can be very well said that Rule 11 of Order 7 of CPC will apply to memo of appeals by reason of the effect of Section 107(2) of CPC The first order of the District Judge clearly indicates that the appeal being T.A. 79 of 1994 was registered and thereafter by his order dated 15.3.1995 it was sta(sic) that appeal would be heard along with the application for condonation (sic) delay. The relevant order dated 15.3.1995 reads :
Today is fixed for hearing over the prayer of condonation of (sic) in preferring the appeal.
Ld. Senior Advocate, Sri. Bhattaeharjee, appears and moved (sic) Petition. But Ld. Senior Advocate Sri. B. Das, or his junior is found a(sic) on call.
in view of the aforesaid circumstances it is ordered that app(sic) will be heard expeditiously and preferably on 24.4.95 and matter condonation of delay will be heard along with the appeal.
This order clearly shows that learned District Judge was of the view (sic) he would hear both the appeal and the application for condonation of the delay together. The impugned order dated 2.5.95 also shows that while ejecting the application for condonation of the delay learned District Judge (sic) dismissed the appeal. The relevant portion of the order dated 2.5.95 may (sic)extracted as follows:
****
After having considered all facts and circumstances I do not find any merit in the application for condonation of delay. Prayer of condonation of delay is rejected with cost of Rs. 500/- (Rupees five hundred) only to be paid by the Appellants to the Respondent.
Consequently the appeal is dismissed.
Pronounced.
It has already been observed that Rule 11 of Order VII of CPC applies memo of appeals by reason of the effect of Section 107(2) of Code of Civil Procedure, which (sic)
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code and Courts of original jurisdiction in respect of suits instituted therein.
The above provision clearly indicates that powers of the Appellate (sic) are co-extensive with those of original authorities. By virtue of this provision an Appellate Court can pass any order which the Court of first substance could pass. What I would like to emphasize is that in view of the provision of Section 107(2) of CPC an Appellate Court is invested with all (sic) powers of an original Court and has accordingly same powers as are preferred upon an original Court under VII Rule 11 of Code of Civil Procedure
For the reasons stated above I am of opinion thas no revision lies (sic) the impugned order. Mr. Bhattacharjee has cited a number of decisions (sic) the points of limitation. But those do not call for any discussion in view of (sic) above finding.
The result is that the revision is rejected being not maintainable. The parties are to bear their own costs so far as revision Petition is concerned.