Delhi District Court
Dhanlaxmi Bank Limited vs Sh. Suresh Talwar on 18 March, 2026
Civil Appeal No. 07 of 2021 | Dhanlaxmi Bank Ltd. vs. Suresh Talwar
IN THE COURT OF SH. NEERAJ SHARMA, DISTRICT JUDGE-04
( CENTRAL), TIS HAZARI COURTS, DELHI
Civil Appeal No. 07 of 2021
CNR No.: DLCT01-001735-2021
IN THE MATTER OF:
DHANLAXMI BANK LTD.
Through its Branch Manager & Authorised Signatory,
10185-A, Ground Floor, Arya Samaj Road,
Karol Bagh, New Delhi-110 005 ...Appellant
VERSUS
SURESH TALWAR
S/o Ram Kishan Talwar,
R/o 518, Ground Floor,
Mukherjee Nagar, New Delhi-110 009
Also at: -
International Tenders, 1556F,
Deepak Mahal, Bhagirath Place,
Chandni Chowk, Delhi-110 006 ...Respondent
Date of Institution of Appeal : 08.02.2021
Date on which Judgment was Reserved : 18.02.2026
Date of Judgment : 18.03.2026
Page no.1 of 20
Digitally signed
by NEERAJ
NEERAJ SHARMA
SHARMA Date:
2026.03.19
17:43:32 +0530
Civil Appeal No. 07 of 2021 | Dhanlaxmi Bank Ltd. vs. Suresh Talwar
JUDGMENT
1. By way of the present judgment, this Court shall adjudicate upon the present appeal, purportedly preferred under Order XLIII Rule 1 read with Section 104 of the Code of Civil Procedure, 1908 ( "CPC" for short), by the appellant/plaintiff i.e. M/s Dhanlaxmi Bank Ltd., against the order dated 07.11.2020 (hereinafter referred to as the "impugned order" ) passed by Ld. Civil Judge -08 (Central), Tis Hazari Courts, Delhi ( hereinafter referred to as the "Ld. Trial Court") in Miscellaneous Application No. 97 of 2020 arising out of Civil Suit No. 3672 of 2017, titled as Dhanlaxmi Bank Ltd. vs. Suresh Talwar ( herein after referred to as " suit" ) , whereby the Ld. Trial Court dismissed both the application under Section 5 of the Limitation Act, 1963 seeking condonation of a delay of 369 days in filing the restoration application, as well as the application under Order IX Rule 4 read with Section 151 CPC for restoration of the said civil suit, the latter being dismissed as barred by limitation consequent upon the rejection of the condonation application.
Case Of The Appellant As Per The Appeal ( In Brief)
2. The necessary facts, as stated in the appeal, for the purposes of the present adjudication are succinctly set out hereunder:
2.1 The appellant/plaintiff, M/s Dhanlaxmi Bank Ltd., a scheduled commercial bank governed under the Reserve Bank of India Act, 1934, filed civil suit no. 3672 of 2017 before the Ld. Trial Court for recovery of a sum of Rs.
65,015/- (Rupees Sixty-Five Thousand and Fifteen only) against the respondent/defendant, namely Sh. Suresh Talwar.
Digitally signed by NEERAJ SHARMAPage no.2 of 20 NEERAJ Date:
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Civil Appeal No. 07 of 2021 | Dhanlaxmi Bank Ltd. vs. Suresh Talwar 2.2 After institution of the suit, the Ld. Trial Court issued summons to the defendant vide order dated 17.02.2018. However, the process server returned the summons unserved as the defendant could not be found at the given address. Vide order dated 27.08.2018, the Ld. Trial Court directed the appellant/plaintiff to trace the fresh address of the defendant and listed the matter for 22.10.2018. It is averred that the appellant/plaintiff did trace the fresh address of the defendant before the scheduled date of 28.01.2019, and the counsel for the plaintiff was provided the fresh address via email dated 22.01.2019. However, on 28.01.2019, when the matter was listed before the Ld. Trial Court, the counsel for the appellant/plaintiff could not reach the Court before the first call for hearing due to some unavoidable circumstances. By the time the counsel reached the court at around 10:30 AM in anticipation of attending the matter on the second call, the civil suit had already been dismissed for non-prosecution and non-appearance vide order dated 28.01.2019.
2.3 Thereafter, the appellant/plaintiff filed an application under Section 114 read with Section 151 CPC for recall/review of the order dated 28.01.2019. The said application was dismissed by the Ld. Trial Court vide order dated 25.09.2019. Aggrieved, the appellant/plaintiff filed an appeal before the Ld. District Judge, Tis Hazari Courts, bearing RCA DJ No. 7 of 2020 under Section 96 read with Section 151 CPC. The said appeal was dismissed vide order dated 13.01.2020, whereby the Ld. District Judge opined that such an order was only appealable under Section 43 of the CPC and further orally directed the appellant's counsel to avail the remedy under Order IX Rule 4 CPC.
Digitally signed by NEERAJ SHARMANEERAJ Date:
SHARMA 2026.03.19 17:43:56 +0530 Page no.3 of 20 Civil Appeal No. 07 of 2021 | Dhanlaxmi Bank Ltd. vs. Suresh Talwar 2.4 Accordingly, the appellant/plaintiff filed miscellaneous application no. 97 of 2020 before the Ld. Trial Court under Order IX Rule 4 read with Section 151 CPC seeking restoration of the suit, accompanied by an application under Section 5 of the Limitation Act, 1963 seeking condonation of a delay of 369 days. The delay was principally attributed to the fact that the appellant had first bonafidely, albeit erroneously, pursued proceedings by way of an application under Section 114 CPC and thereafter an appeal under Section 96 CPC, both of which were ultimately held to be not the appropriate remedy.
Decision of Ld. Trial Court
3. The Ld. Trial Court, vide the impugned order dated 07.11.2020, rejected the application under Section 5 of the Limitation Act primarily on the ground that the applicant/plaintiff had failed to explain the delay on a day-to-day basis and that its conduct throughout the proceedings was lacklustre, further observing that as a banking institution entrusted with the custody of public money, the responsibility of diligent prosecution was heightened. Consequently, the application under Order IX Rule 4 CPC was also dismissed as barred by limitation.
Grounds Of Appeal
4. Aggrieved by the said impugned order dated 07.11.2020, the appellant/plaintiff has preferred the present appeal on the following grounds, inter alia:
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(a) That the impugned order is a non-speaking, erroneous, arbitrary, and illegal order passed without application of judicial mind and is contrary to the settled principles of law.
(b)That the Ld. Trial Court failed to appreciate that the non-appearance of the counsel on 28.01.2019 was bonafide, neither wilful nor intentional, and the suit ought not to have been dismissed on the very first call, being harsh and violative of the principles of natural justice and audi alteram partem.
(c)That the Ld. Trial Court failed to appreciate that the appellant had diligently complied with all prior orders and had duly traced the fresh address of the defendant before the scheduled date of hearing.
(d) That the Ld. Trial Court failed to appreciate that a substantial portion of the delay was occasioned by the appellant having bonafidely prosecuted proceedings before the wrong court, and the benefit of Section 14 of the Limitation Act ought to have been extended to the appellant.
(e) That the Ld. Trial Court failed to appreciate the settled legal position as laid down by the Hon'ble Supreme Court in Rafiq & Ors. vs. Munshilal & Ors. (1981) 2 SCC 788, that parties should not suffer for the lapse of their counsel.
(f) That reliance is also placed upon Narendra Pratap Vs. Gopi Lal and Ors., IR 2006 Raj 48; U.P. State Bridge Corporation Ltd. vs. Civil Judge (S.D.), Lucknow, MANU/UP/3908/2010; and Rabindra Nath Bera & Ors. vs. Radha Krishna Bera & Ors., MANU/WB/0388/2019, in support of the contention that a party ought not to be made to suffer for the fault of counsel, and that condonation of delay ought to be viewed with a liberal and sympathetic approach. Digitally signed by NEERAJ NEERAJ SHARMA SHARMA Date:
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(g) That the nomenclature or erroneous mentioning of a provision neither confers jurisdiction nor denudes the Court of its jurisdiction.
(h) With these submissions, the appellant / plaintiff has sought setting aside of the order dated 07.11.2020 passed by the Ld. Trial Court and prayed that present appeal may be allowed.
Proceedings Before This Court
5. Upon institution of the present appeal before this Court, notice was issued to the respondent/ defendant. Since the respondent could not be served through ordinary modes of service, this Court directed service of notice upon the respondent/ defendant by way of publication in a newspaper in accordance with law. Despite due publication, none appeared on behalf of the respondent before this Court. In view of the respondent having been duly served through publication and having chosen not to appear or participate in the proceedings, the right of the respondent to file a reply to the appeal was closed vide order dated 10.04.2024. Thereafter, the present appeal was heard with only the learned counsel for the appellant addressing arguments before this Court.
Analysis And Findings
6. When the present appeal was taken up for hearing, this Court, upon a perusal of the impugned order and the grounds of appeal, raised an issue going to the very root and foundation of the present proceedings, namely, whether the present appeal is at all maintainable in law before this Court against the impugned order, which in essence and substance is an order rejecting an application for condonation of delay under Section 5 of the Limitation Act, 1963. Upon the said issue being flagged, the learned counsel for the appellant addressed detailed arguments on this aspect. Digitally signed by NEERAJ SHARMA NEERAJ Date:
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7. This Court is of the considered opinion that the issue of maintainability directly affects the jurisdiction of this Court to entertain the present appeal and, being a threshold issue that goes to the root of the matter, it is appropriate and necessary to decide the same before proceeding any further in the matter. Accordingly, this Court proceeds to decide the issue of maintainability in the first instance.
8. Before examining the specific question of maintainability, it is apposite to advert to the well-settled legal proposition that the right of appeal is not an inherent or natural right and cannot be assumed to exist unless it is expressly conferred by a statute. An appeal is a creature of statute and must be traceable to a specific statutory provision. In the absence of a statute expressly conferring the right to prefer an appeal, no such right can be inferred, implied, or assumed. This principle has been consistently and uniformly reiterated by the Hon'ble Supreme Court and by the Hon'ble High Courts across the country in a long line of decisions.
9. The statutory framework governing appeals in civil proceedings is delineated by the CPC with clarity and precision. For the purposes of the present analysis, the relevant provisions merit careful examination.
10. Section 2(2) of the CPC defines a "decree" as follows:
"'decree' means the formal expression of an adjudication which, so far 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 rejection 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." Digitally signed by NEERAJ NEERAJ SHARMA SHARMA Date:
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11. A bare reading of this provision makes it evident that the definition of "decree" is both inclusive and exclusive. It expressly includes the rejection of a plaint and determination of any question within Section 144, but expressly excludes any adjudication that is appealable as an appeal from an order, and any order of dismissal for default. Pertinently, the definition does not include an order on an application for condonation of delay under Section 5 of the Limitation Act. The said order is not a formal expression of adjudication conclusively determining the rights of the parties with regard to any matter in controversy in the suit, rather it is an order of a procedural nature, disposing of an interlocutory application relating to limitation. An order rejecting a condonation application does not, therefore, qualify as a "decree" within the meaning of Section 2(2) CPC.
12. Further Section 96(1) of the CPC provides that save where otherwise expressly provided in the body of the CPC or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. It is well-established that under Section 96 CPC, an appeal lies only from a "decree" as defined under Section 2(2) CPC. An order that does not satisfy the requirements of the definition of "decree" cannot be assailed by way of an appeal under Section 96 CPC. Since an order on an application for condonation of delay under Section 5 of the Limitation Act does not fall within the definition of "decree" as set out in Section 2(2) CPC, no appeal lies therefrom under Section 96 CPC.
13. Section 104(1) CPC provides that an appeal shall lie from the following orders, and save as otherwise expressly provided in the body of the CPC or by any other law for the time being in force, from no other orders, namely i.e. such Digitally signed by NEERAJ SHARMA NEERAJ Date:
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Civil Appeal No. 07 of 2021 | Dhanlaxmi Bank Ltd. vs. Suresh Talwar orders as are specified thereunder, including such other orders as may be prescribed. The expression "from no other orders" contained in Section 104(1) CPC is of considerable legislative significance. It constitutes an express and categorical prohibition on the maintainability of an appeal from orders that do not fall within the specified categories. Sub-section (2) of Section 104 further provides that no appeal shall lie from any order passed in appeal under Section 104 itself.
14. Order XLIII Rule 1 CPC is the provision which prescribes the categories of orders against which an appeal shall lie under Section 104 CPC. In view of its paramount importance to the determination of the present issue, this Court deems it appropriate to reproduce the said provision verbatim hereunder:
"Order XLIII -- Appeals from Orders
1. Appeals from orders. -- An appeal shall lie from the following orders under the provisions of section 104, namely:
--
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court (except where the procedure specified in rule 10A of Order VII has been followed);
(b) [Omitted by Act 104 of 1976],
(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application for an order to set aside a decree passed ex parte;
(e) [Omitted by Act 104 of 1976],
(f) an order under rule 21 of Order XI
(g) [Omitted by Act 104 of 1976]
(h) [Omitted by Act 104 of 1976];Digitally signed by NEERAJ
NEERAJ SHARMA Page no.9 of 20 SHARMA Date:
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(i) an Order under rule 34 of Order XXI on an objection to a draft of a document or of an endorsement
(j) an order under rule 72 or 92 of Order XXI setting aside or refusing to set aside sale;
(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub- rule (1) of rule 105 of that Order is appealable;
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
(m) [Omitted by Act 104 of 1976]
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(na)an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;
(o) [Omitted by Act 104 of 1976]
(p) Orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of order (XXVIII);
(r) an order under rule 1, rule 2 1 [rule 2A], rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1, or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal; (u) an order under rule 23 1 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court:
(V) [Omitted by Act 104 of 1976] (w) an order under rule 4 of Order XLVII granting an application for reviw Digitally signed NEERAJ by NEERAJ SHARMA SHARMA Date: 2026.03.19 17:44:32 +0530 Page no.10 of 20 Civil Appeal No. 07 of 2021 | Dhanlaxmi Bank Ltd. vs. Suresh Talwar
15. A careful and complete reading of the verbatim text of Order XLIII Rule 1 CPC, as reproduced above, makes it unequivocally clear that the said provision contains an exhaustive and specific catalogue of orders against which an appeal shall lie under Section 104 CPC. The catalogue is exhaustive and not illustrative. It will be noticed at once, upon a plain reading of the aforesaid provision, that an order disposing of an application for condonation of delay under Section 5 of the Limitation Act, 1963, whether allowing or rejecting such an application, does not find any mention whatsoever in the aforesaid list of appealable orders. The legislature, in its wisdom and with deliberate intent, has not included such orders within the categories of appealable orders under Order XLIII Rule 1 CPC. Equally, it merits notice that Order XLIII Rule 1(c) CPC, which is the closest provision in point, renders appealable only an order under Rule 9 of Order IX CPC rejecting an application for setting aside the dismissal of a suit, not an order rejecting a condonation application that precedes the disposal of such a restoration application.
16. Against this statutory backdrop, this Court now turns to the nature and character of the impugned order dated 07.11.2020. A careful perusal of the impugned order reveals that the Ld. Trial Court, by the said order, disposed of two applications:
(i) The application under Section 5 of the Limitation Act, 1963 seeking condonation of a delay of 369 days was dismissed, the Ld. Trial Court finding no sufficient cause for the delay; and
(ii) The application under Order IX Rule 4 read with Section 151 CPC for restoration of Civil Suit No. 3672 of 2017, which was consequently dismissed as barred by limitation. Digitally signed by NEERAJ NEERAJ SHARMA SHARMA Date:
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17. The pith, & substance of the impugned order lies in the decision rendered on the application for condonation of delay under Section 5 of the Limitation Act. The dismissal of the restoration application was not an independent, substantive adjudication on the merits of the prayer for restoration rather it was an automatic and inevitable consequence of the rejection of the condonation application. The two orders are intertwined, with the former being the cause and the latter being the mere consequential effect.
18. This Court has already found that an order under Section 5 of the Limitation Act does not find mention in Order XLIII Rule 1 CPC and is thus not an appealable order within the meaning of Section 104 CPC. However, at this stage, it is also necessary to examine whether the consequential dismissal of the restoration application under Order IX Rule 4 CPC could independently render the appeal maintainable before this Court.
19. In this regard, it is to be noted that Order XLIII Rule 1(c) CPC specifically renders appealable an order under Rule 9 of Order IX CPC rejecting an application for setting aside the dismissal of a suit. Order IX Rule 9 CPC deals with cases where a suit has been dismissed for default in the presence of, or after service upon, the defendant. However, in the present case, it is an admitted position on behalf of the appellant that, in the present case, the summons issued to the defendant were not served and, consequently, the defendant never appeared in the proceedings prior to dismissal of the suit for non-prosecution. In fact, as noted above ( while stating the case of the appellant/ plaintiff), the appellant/ plaintiff has categorically pleaded in the memorandum of appeal that after institution of the suit, summons were issued to the defendant vide order dated 17.02.2018 but, the same were returned unserved by the process server as the defendant could not be found at the Digitally signed by NEERAJ NEERAJ SHARMA Page no.12 of 20 SHARMA Date:
2026.03.19 17:44:41 +0530 Civil Appeal No. 07 of 2021 | Dhanlaxmi Bank Ltd. vs. Suresh Talwar given address and thereafter, vide order dated 27.08.2018, the Ld. Trial Court directed the appellant/plaintiff to furnish a fresh and correct address of the defendant and adjourned the matter accordingly. It is further averred by the appellant that a fresh address of the defendant was duly traced prior to the next date of hearing, and the same was communicated to the counsel for the plaintiff through an email dated 22.01.2019. However, on 28.01.2019, when the matter was listed before the learned Trial Court, the counsel for the appellant/plaintiff could not reach the Court before the first call on account of unavoidable circumstances and by the time the counsel reached the Court at about 10:30 AM, expecting the matter to be taken up in the second call, the suit had already been dismissed for non-prosecution and non-appearance vide order dated 28.01.2019. The aforesaid factual position also stands corroborated from the order sheets dated 17.02.2018 and 28.01.2019 passed in Suit No. 3672/17 titled Dhan Laxmi Bank Ltd. vs. Suresh Talwar, copies whereof have been placed on record by the appellant along with the memorandum of appeal. Thus in the present case evidently, the suit was dismissed on 28.01.2019 for non-prosecution and non-appearance of counsel for the plaintiff at a stage when the defendant had not yet been served. Pertinently in such a factual scenario, the appropriate application for restoration was under Order IX Rule 4 CPC, which governs situations where the suit is dismissed in the absence of both parties or for non-prosecution before service of summons on the defendant under Order IX Rule 3 & 2 respectivly. Significantly, an order on an application under Order IX Rule 4 CPC is not enumerated in Order XLIII Rule 1 CPC, and hence is also not an appealable order within the meaning of Section 104 read with Order XLIII Rule 1 CPC. Digitally signed NEERAJ by NEERAJ SHARMA SHARMA Date: 2026.03.19 17:44:45 +0530 Page no.13 of 20 Civil Appeal No. 07 of 2021 | Dhanlaxmi Bank Ltd. vs. Suresh Talwar
20. Even assuming, for the sake of argument, that the restoration application could be treated as one under Order IX Rule 9 CPC, and that an order thereon may be appealable under Order XLIII Rule 1(c) CPC, the position would not alter in the present case. As has already been stated, the dismissal of the restoration application was entirely and exclusively premised upon the rejection of the condonation application. The impugned order records no independent findings on the merits of the prayer for restoration. Therefore, even in such a scenario, the true and determinative challenge remains against the order on the condonation application, which is not appealable. The mere labelling of the restoration dismissal as a consequence cannot serve to clothe the present appeal with maintainability when the substantive challenge is directed against an order on the condonation application.
21. As already observed, by the express mandate of Section 104(1) CPC, which categorically states that an appeal shall lie from specified orders and "from no other orders", the present appeal against an order rejecting an application for condonation of delay under Section 5 of the Limitation Act is not maintainable. This Court is also conscious that the principle that substance prevails over form is equally applicable to questions of jurisdiction. The nomenclature under which an appeal is filed and the provision under which it is styled cannot, by themselves, confer or expand the jurisdiction of the appellate court, unless the substantive appeal, in its true nature and character, falls within a category over which the appellate court is vested with jurisdiction by statute. In the present case, the substance of the challenge being an order on a condonation application, it does not fall within any appealable category under Order XLIII Rule 1 CPC. Digitally signed by NEERAJ NEERAJ SHARMA SHARMA Date:
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22. The ld. counsel for the appellant, in the course of arguments on maintainability, placed reliance upon two judgments in support of the proposition that parties ought not to suffer for the fault of their counsel and that delay ought to be condoned with a sympathetic approach, urging that these authorities support both the maintainability and, on merits, the allowance of the present appeal. This Court has carefully considered the said judgments and finds them clearly distinguishable and wholly inapplicable to the question of maintainability that falls for determination in the present proceedings. In judgment of the Hon'ble Allahabad High Court (Lucknow Bench) in U.P. State Bridge Corporation Ltd. vs. Civil Judge (S.D.), Lucknow, MANU/UP/3908/2010 , the revisionist had filed an application under Section 148 CPC for extension of time to deposit court costs as directed by the Court, which was rejected by the Ld. Trial Court. The Hon'ble Allahabad High Court, in the exercise of its revisional jurisdiction under Section 115 CPC, set aside the impugned order and allowed the revision, placing reliance upon the ratio of the Hon'ble Supreme Court in Rafiq & Anr. vs. Munshi Lal, AIR 1981 SC 1400, and holding that the revisionists should not have been punished for the lapse of the counsel when the law permitted him to decide the case. This Court finds that it is clearly distinguishable from the facts and the question arising in the present case and is inapplicable to the present case inasmuch as the judgment in U.P. State Bridge Corporation (supra) dealt with an application under Section 148 CPC for extension of time to deposit costs, and was decided by the Hon'ble Allahabad High Court in the exercise of its revisional jurisdiction under Section 115 CPC. The present appeal is before this Court exercising its appellate jurisdiction under the CPC. The nature of proceedings and the jurisdiction being exercised are fundamentally distinct. Pertinently, the revisional jurisdiction exercised by Digitally signed by NEERAJ NEERAJ SHARMA Page no.15 of 20 SHARMA Date:
2026.03.19 17:44:54 +0530 Civil Appeal No. 07 of 2021 | Dhanlaxmi Bank Ltd. vs. Suresh Talwar the Hon'ble High Court under Section 115 CPC is fundamentally distinct from the appellate jurisdiction exercised by this Court under Sections 96 and 104 read with Order XLIII Rule 1 CPC. The scope of revisional jurisdiction does not require the impugned order to qualify as a decree or to fall within any specified category of appealable orders. A decision rendered in the context of revisional jurisdiction under Section 115 CPC, therefore, has no bearing whatsoever on the question of whether an appeal is maintainable under Section 104 read with Order XLIII Rule 1 CPC. The two jurisdictions operate in distinct and separate domains. The decision in judgment entirely proceeded on the merits of the question of extension of time and the applicability of the principle that parties should not suffer for the fault of counsel. It does not, expressly or by implication, deal with or lay down any principle of law pertaining to the maintainability of an appeal before a court of first appellate jurisdiction against an order rejecting an application for condonation of delay under Section 5 of the Limitation Act. The principle enunciated in U.P. State Bridge Corporation (supra) that parties should not suffer for the fault of the counsel, is a principle relevant to the exercise of discretion at the stage of deciding a condonation or extension application on its merits. It has no application to, and cannot determine, the anterior and threshold question of whether an appeal lies before this Court against an order rejecting such an application. For all the aforesaid reasons, the judgment in U.P. State Bridge Corporation (supra) is of no assistance to the appellant on the issue of maintainability and is accordingly distinguished.
23. The ld. counsel for the appellant has also relied upon the judgment of the Hon'ble Calcutta High Court in Rabindra Nath Bera & Ors. vs. Radha Krishna Bera & Ors., MANU/WB/0388/2019. In the said case, the petitioner had filed an application for substitution of legal representatives upon the death of a Digitally signed Page no.16 of 20 NEERAJ by NEERAJ SHARMA SHARMA Date: 2026.03.19 17:44:58 +0530 Civil Appeal No. 07 of 2021 | Dhanlaxmi Bank Ltd. vs. Suresh Talwar respondent, accompanied by a prayer for condonation of the considerable delay in filing the said application. The Hon'ble Calcutta High Court allowed the application and condoned the delay, relying upon Rafiq & Anr. vs. Munshilal & Anr., AIR 1981 SC 1400, and holding that the delay was caused not due to any intentional lapse on the part of the litigant but owing entirely to the fault of the ld. Advocate who had left the profession without informing her client, and that accordingly the litigant should not be made to suffer for the fault of the Advocate. This Court finds that the said judgment is also clearly distinguishable and inapplicable to the question of maintainability in the present case, for the reasons that the judgment in Rabindra Nath Bera (supra) was rendered by the Hon'ble Calcutta High Court dealing with an application for substitution of legal representatives and condonation of delay therein, filed in the context of a second appeal pending before that Court. The question before the High Court was exclusively and entirely on the merits of the prayer for setting aside abatement and condoning the delay. The said judgment does not, in any manner whatsoever, deal with or lay down any principle of law regarding the maintainability of an appeal before a court of first appellate jurisdiction against an order rejecting a condonation application under Section 5 of the Limitation Act. Just as in the case of U.P. State Bridge Corporation (supra) discussed above, the ratio in Rabindra Nath Bera (supra) is confined to the substantive question of whether delay ought to be condoned in the exercise of discretion by the court, applying the principle that a litigant should not be penalised for the fault of his advocate. This principle, salutary and well-settled as it is, operates at the stage of deciding a condonation application on its merits. It has no application to, and cannot determine, the anterior and threshold question of whether an appeal is maintainable before this Court against an order rejecting such an application.
Digitally signed by NEERAJPage no.17 of 20 NEERAJ SHARMA
SHARMA Date:
2026.03.19
17:45:03 +0530
Civil Appeal No. 07 of 2021 | Dhanlaxmi Bank Ltd. vs. Suresh Talwar Pertinently, the principle in Rabindra Nath Bera (supra) could only be of relevance if this Court were to hold the present appeal maintainable and were to proceed to examine the correctness of the impugned order on its merits. Since this Court has held the present appeal itself to be not maintainable in law, the principle enunciated in the said judgment is rendered inapplicable at the threshold. Furthermore, no amount of equitable consideration in favour of the appellant, however compelling it may appear, can confer upon this Court appellate jurisdiction that the statute has not conferred. Jurisdiction is a creature of statute and equity cannot supply what the legislature has withheld. The said judgment, proceeding as it does from a position of the court already having jurisdiction over the matter, cannot be invoked to confer jurisdiction upon a court that the legislature has not vested with such jurisdiction. For all the aforesaid reasons, the judgment in Rabindra Nath Bera & Ors. (supra) is also inapplicable to the issue of maintainability and is accordingly distinguished. In sum, both the judgments relied upon by the ld. counsel for the appellant deal with the substantive question of the merits of condonation of delay and operate as authority for the proposition that parties should not be penalised for the lapse of counsel. Neither of these judgments addresses the question of whether an appeal is maintainable against an order rejecting a condonation application under Section 5 of the Limitation Act. They do not, therefore, advance the case of the appellant on the threshold issue of maintainability that falls for determination before this Court. The reliance placed on them is accordingly misplaced and unavailing.
24. Summarizing the above discussion, it is held that an order rejecting an application for condonation of delay under Section 5 of the Limitation Act, 1963 is not a "decree" within the meaning of Section 2(2) CPC, and hence is not appealable under Section 96 CPC. Further, such an order does not find Digitally signed by NEERAJ NEERAJ SHARMA Page no.18 of 20 Date:
SHARMA 2026.03.19 17:45:07 +0530 Civil Appeal No. 07 of 2021 | Dhanlaxmi Bank Ltd. vs. Suresh Talwar mention in the exhaustive catalogue of appealable orders specified under Order XLIII Rule 1 CPC, and hence the same is not an appealable even as order within the meaning of Section 104(1) CPC. Pertinently, By the express mandate of Section 104(1) CPC, which states that an appeal shall lie from specified orders and "from no other orders", an appeal against an order rejecting an application for condonation of delay under Section 5 of the Limitation Act is not maintainable before this Court. The dismissal of the restoration application under Order IX Rule 4 CPC, being merely a consequential order flowing from the rejection of the condonation application and not an independent substantive adjudication on the merits of the prayer for restoration, does not alter the character of the impugned order so as to render it independently appealable before this Cour. The judgments in U.P. State Bridge Corporation (supra) and Rabindra Nath Bera (supra), relied upon by the ld. counsel for the appellant are clearly distinguishable and inapplicable to the issue of maintainability, as both decisions deal only with the merits of condonation of delay and not with the question of whether an appeal lies against an order rejecting a condonation application, and neither was rendered in the context of appellate jurisdiction under Section 104 read with Order XLIII Rule 1 CPC. Accordingly, the present appeal, being filed against an order that is not a decree within Section 2(2) CPC and which does not fall within any of the categories of orders enumerated under Order XLIII Rule 1 CPC, is not maintainable in law before this Court.
25. The present appeal is, accordingly, dismissed on the ground of maintainability alone, without entering into the merits of the impugned order or the correctness of the decision of the Ld. Trial Court on the condonation application. Digitally signed by NEERAJ NEERAJ SHARMA SHARMA Date:
2026.03.19 17:45:11 +0530 Page no.19 of 20 Civil Appeal No. 07 of 2021 | Dhanlaxmi Bank Ltd. vs. Suresh Talwar
26. It is, however, clarified that this Court expresses no opinion whatsoever on the merits of the impugned order dated 07.11.2020 or on the merits of the application for condonation of delay or the restoration application that were the subject matter of the said order. The dismissal of the present appeal on the ground of maintainability shall not operate as a bar on the appellant/plaintiff from availing any other remedy available to it in law, in accordance with the applicable statutory provisions, if any such remedy is available.
27. Appeal file be consigned to Record Room.
28. No Order as to costs.
29. Copy of this order be sent to the Ld. Trial Court concerned.
Digitally signed by NEERAJAnnounced in the open court NEERAJ SHARMA
SHARMA Date:
2026.03.19
17:45:17 +0530
Dated: 18.03.2026 (NEERAJ SHARMA)
DISTRICT JUDGE-04 (CENTRAL)
TIS HAZARI COURTS, DELHI
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