NEETY GUPTA Vs. USHA GUPTA & ORS

JUDGEMENT

(1.) As the appeal is barred by limitation, the appellant has filed an application praying for condonation of delay of 382 days. In the application it is stated that the appellant had filed Review Application RA No. 146/2016 seeking review of order dated 28th January, 2016. This review application was disposed of by the single Judge vide order dated 17th February, 2017 as having been withdrawn with liberty to file an appeal against the impugned order. Referring to the decision of a single Judge of this Court in Sita Kashyap & Anr vs. Harbans Kashyap & Others, 2011 183 DLT 47, the review order observes as under:-

(2.) By Order dated 28.01.2016, being the order under challenge in this appeal, the single Judge has taken the view that the application for mesne profit cannot be entertained after preliminary decree is passed if no such prayer was made in the plaint. The said view, as also alluded to in the review order, is contrary to the view expressed by another single Judge in an earlier judgment reported in Sita Kashyap & Anr . In fact, before us reference is also made to the judgment in the case of Seth Girdhari Lal & Ors vs. Seth Gaja Nand & Ors, 1974 1 ILR(Del) 864 and order dated 12th August, 2013 of a Division Bench of this Court in FAO(OS) No. 238/2011 titled Harbans Kashyap vs. Sita Kashyap & Ors affirming the judgment of the single Judge in the case of Sita Kashyap & Anr .

(3.) In view of the aforesaid position, we condone the delay in filing of the appeal, noticing the fact that the appellant had filed the review application on 26.02.2016 which had remained pending till 17.02.2017.