HIRABEN MOHANBHAI PATEL Vs. HINDOCHA ENGINEERING CO

JUDGEMENT

(1.) This Revision Application under Sec. 115 of the Code of Civil Procedure arises from the judgment and order of the learned Extra Assistant Judge, Junagadh in Miscellaneous Civil Application No. 10 of 1989 directing the applicants to deposit the entire decretal amount before a particular date, as a pre-condition for condoning the delay of 13 days in filing the appeal.

(2.) The opponent-Hindocha Engineering Company filed Regular Civil Suit No. 526 of 1983 against the applicants for recovering the price of goods sold and delivered to the applicants-defendants. As the applicants- Junagadh. defendants failed to present the written statement even after being served with summons and after getting adjournments from time to time, the learned 2nd Joint Civil Judge (J.D.), Junagadh pronounced the judgment and passed the decree against them on 19-11-1988. The applicants challenged this decree by filing an appeal under Sec. 96 of the Code of Civil Procedure, but as there was a delay of 13 days in filing the appeal, they submitted Civil Miscellaneous Application No. 10 of 1989 for condonation of delay of 13 days in filing the appeal. The learned Extra Assistant Judge, Junagadh after hearing the respective Advocates, came to the conclusion that there was sufficient cause for not preferring the appeal within the period of limitation. He, therefore, allowed the application for condonation of delay, but imposed the following conditions. The operative portion imposing a condition to deposit the decretal amount. within a specific time period. The operative portion of the order passed by the learned Judge reads as under :

(3.) This order was passed on 18/02/1989. On 18-3-1989 the applicants submitted another application for stay of execution under Order XLI Rule 5(3)(c) of the Code of Civil Procedure contending that the applicants who were agriculturists were not in a position to deposit the decretal amount because of famine and that the decretal amount can be secured by calling upon the judgment-debtor to furnish the security as required under sub-rule 3(c) of Rule 5 of Order XLI. This application was also rejected.