S PAKKIARAJ Vs. S N KULASEKARAN

JUDGEMENT

(1.) C. M. P. No. 8475 of 1993 is for excusing the delay of 134 days in filing the first appeal against the judgment and decree dated 16. 10. 1992 in O. S. No. 250 of 1988 on the file of Sub Court , Vellore .

(2.) THOUGH it is not specifically stated in the affidavit in support of the petition, the learned counsel for the petitioners admits that the copy application for the abovesaid judgment and decree dated 16. 10. 1992 was made only after 90 days from the abovesaid date 16. 10. 1992. Yet, according to the said counsel, the civil miscellaneous petition cannot be dismissed on the footing of the decision given by the Division Bench of this Court in The Land acquisition Officer v. V. Kannan Pillai, (1992)2 L. W. 28. I was also aparty to the said Division Bench judgment and the said judgment only concurred with the earlier judgment of Ratnam, J. in Ramalingam Pillai v. Arunachalam Pillai, (1988)2 M. L. J. 139.

(3.) NO doubt the learned counsel for the petitioners drew my attention to the following passage in Bechi v. Ashan Ullah Khan J. L. R. 12 all. 461 at 473 (D. B. ).- "there may of course be cases in which delay in applying for a copy. . . . is due to wholly unavoidable causes beyond the control of the litigant, but this delay being antecedent to the application. . . . cannot be called' 'time requisite for obtaining a copy' 'within the meaning of Sec. 12,. . . . . . . . and if there has been delay under excusable or unavoidable circumstances, that would be a matter for consideration under Sec. 5. . . . . . " So according to the learned counsel the delay antecedent to the application for copy of the judgment and decree may be considered for being excused under Sec. 5. But, this Allahabad decision has not considered the meaning of the term "within such time" found in Sec. 5, as expounded by the Supreme Court in Ramlal v. Rewa Coalfields Limited, A. I. R. 1962 S. C. 361.