DURGA PRASAD AND OTHERS Vs. RAM SARAN

JUDGEMENT

(1.) Heard learned counsel for all the parties and gone through the records.

(2.) This second appeal has been preferred against the judgment and decree dated 1.11.2011 passed by the Additional District Judge, Court No.8, Faizabad in first appeal no.124 of 2009, by which judgment and decree dated 7.8.2009 passed by learned VIth Additional Civil Judge (Junior Division), Faizabad in civil suit no.194 of 1986 has been confirmed.

(3.) This appeal has been preferred with delay of eight months and ten days. Through C.M. Application No.90982 of 2012, the appellants have prayed for condonation of delay under Sec. 5 of Limitation Act on the ground that the appellant has contacted his counsel Sri A.N. Singh, Advocate on 15.01.2012 and again on 18.01.2012. But, thereafter, on 20.09.2012 he came to know that his counsel Sri A.N. Singh has passed away on 07.09.2012. The settled legal position is that each days' delay has to be explained. The appellants have not explained any reason whatsoever falling between 18.01.2012 and 07.09.2012 to contact his counsel. In the meantime, as deposed in the counter affidavit the appellant appeared in the execution case no.1 of 2012. He moved adjournment application on 29.09.2012 which is contained as Annexure No.1, in which it was alleged that he has received copies of judgment and decree on 28.09.2012 and he has to go to contact his counsel at Lucknow and on this ground he sought adjournment. It was further alleged that in that application that Durga Prasad was doing pairavi of the case who has not filed any appeal before the High Court. This annexure falsifies the averment made by the appellant in his affidavit and, as such the delay has not at all been explained.