SHAITAN MAL KHATRI Vs. MILKU

JUDGEMENT

(1.) The substantial questions of law formulated and to be answered in this defendant's second appeal are as under:--

(2.) On appeal being preferred by defendant No. 1 before the first appellate Court along with application for condonation of delay in filing the appeal as the appeal was barred by two years and two months, the first appellate Court did not consider the application for condonation of delay finally and held that the suit is barred by limitation and decided the appeal, on merits, leading to filing of this Second Appeal under Section 100 of the Code of Civil Procedure by the defendant No. 1, which has been admitted for hearing on the substantial questions of law formulated as mentioned in opening paragraph of this judgment.

(3.) Mr. Prafull N. Bharat, learned counsel appearing for the appellant/defendant would submit that the first appellate Court has committed palpable error of jurisdiction in dismissing the appeal on merits, without considering the application for condonation of delay finally. He would further submit that finding recorded by First Appellate Court dismissing the appeal without considering the sufficiency of the cause for delay in filing the appeal, is equally bad in law and consequently the impugned judgment and decree is liable to be set aside.