MAHADEVAPPA AND OTHERS Vs. MALLAPPA AND OTHERS

JUDGEMENT

(1.) This revision under Sec. 115 C.P.C is directed against the order dated 24-7-1990 of the I Additional District Judge, Dharwar(Hubli) on I.A.I. in R.A. No. 31/1989. The appellant (first respondent herein) preferred the appeal against the preliminary decree granted to the plaintiffs in O.S. No. 215/1980. The appeal was presented belatedly. However, it was accompanied by IA.I for stay of the decree under appeal as well as IA.II for condonation of delay in presenting the appeal. After notices to the successful plaintiffs, who were respondents before the learned District Judge, the order came to be passed on IA.I granting stay of the decree without deciding the question of condonation of delay in presenting the appeal.

(2.) As in apparent, the appeal is there. Sri Jayakumar S. Patil, learned counsel appearing for the appellant/first respondent has submitted that the practice in the subordinate Courts has been to consider the application for condonation of delay under Sec. 5 of the Limitation Act along with the hearing of the appeal and it was in that circumstance that the learned Additional District Judge came to pass the order on I.A.I while keeping I.A.II pending to be decided along with the appeal.

(3.) Per contra, the learned counsel for the revision petitioners has strenuously urged that under Order XLI, Rule 3-A, C.P.C., it is mandatory that the Court decides the question of delay in presenting the appeal before it proceeds any further unless it is not disposed of in accordance with Rule 11 or Order 41, C.P.C.