GEETA BALA GOYAL Vs. KAILASH CHANDRA

JUDGEMENT

(1.) -Heard Shri Murlidhar, the learned senior counsel assisted by Shri Ajay Kumar Sharma, the learned counsel for the petitioners and Sri Nirvikar Gupta, the learned counsel for the contesting respondent. With the consent of the parties, the writ petition is decided finally without calling for a counter-affidavit.

(2.) IT transpires that a suit was decreed by a judgment dated 25.3.1993 and the same was put in execution. When the petitioners came to know about the execution of the decree, they filed an objection under Section 47 of the C.P.C. which is pending consideration. Notwithstanding the aforesaid, the petitioners were advised to file an appeal and, accordingly on 6.4.2005, an appeal was filed under Order XLI, Rule 1 of the C.P.C. along with an application under Section 5 of the Limitation Act to condone the delay in filing the appeal. The decree holders filed their objections, and subsequently, the appellate court by an order dated 7.8.2008, rejected the application for the condonation of the delay. The petitioners, being aggrieved by the rejection of the application for the condonation of delay, filed under Section 5 of the Limitation Act, has filed the present writ petition under Article 226 of the Constitution of India.

(3.) IN the light of the aforesaid judgments, the learned counsel for the petitioners submitted that the present writ petition under Article 226 of the Constitution of INdia is maintainable since the order was not a decree, and therefore, was not appealable under Section 100 of the C.P.C.