M R MANJUNATHA RAO Vs. RUKMINIYAMMA

JUDGEMENT

(1.) The appeal is against the Final decree made in partition suit in O.S. No. 74 of 1975 on the file of the Principal Civil Judge, Shimoga.

(2.) There having been a delay of 182 days in preferring this appeal, appeallnt has made this application, I.A.I., to have that delay excused. The explanation for the delay is that the learned counsel engaged in the case, by a bonafide, though erroneous, view as to the choice of the first appellate forum, advised and filed the appeal in the court of the District Judge, Shimoga; that the appeal was prosecuted in good faith and with due diligence in that forum till 5-4-1982, when that court held that having regard to the value of the subject matter in the suit, it had no pecuniary jurisdiction to entertain the appeal, and that the period of the pendendy of the appeal before that court was eligible to be excluded.

(3.) The decree under appeal was passed on 5-2-1981 the appeal filed before the District Court on 23-3-1981 was within the 30 day's time prescribed for an appeal to the District Court. If the period of pendency of the appeal before the District Court was excluded, then the appeal woutd otherwise be in time. The other short delays in taking back the memorandum of appeal from the District Court and in presenting it here would be absorbed in the sixty more days available for an appeal to this Court.