VINODKUMAR Vs. KAILASHKUMAR

JUDGEMENT

(1.) This is an application under Section 5 of the Limitation Act for condonation of delay of 46 days caused in filing an appeal against order.

(2.) By an order dated 16-4-2008, the learned 4th Joint Civil Judge, Senior Division. Nagpur, allowed the application Exhibit 124 filed by the plaintiff under Order 13, Rule 11 of the Code of Civil Procedure of striking out the defence. This order was subject matter of challenge in Writ Petition No.4262 of 2008. This Court issued the notice in the said matter on 26-9-2008 and granted an ad interim stay to the proceedings before the Trial Court. On J 0-7-2009, by a speaking order, this Court accepted the contention raised by the respondent that an appeal is maintainable against the order impugned in the petition and in view of the decision of the Apex Court in Nawab Ali Khan and Ors. Vs. Nawab Imdad Jah Bahadur and Ors., 2009 5 SCC 162 the petitioner was permitted to convert writ petition into an appeal against order. It was made clear that even if the appeal may be registered as such, the question as to whether it would be within limitation or not, is kept open. The interim order was continued for a period of two weeks. Accordingly, writ petition was converted into an appeal against order.

(3.) On 16-11-2009, the parties were heard for admission of appeal against order and inspite of the fact that this Court had on 10-7-2009 made it clear that the question of limitation is kept open, no objection was raised that the appeal was barred by limitation. This appeal was admitted and the interim stay to the proceedings before the Trial.Court was continued. Shri. Sadavarte, the learned counsel appearing for the respondent, submitted that immediately on the next day, i.e. 17-11-2009, Civil Application No. 161 of 2009 was filed by him for setting aside the order dated 16-11 -2009 passed by this Court, by which the appeal was admitted and the interim order was continued. This application was listed before this Court on 5-1-2010. It was pointed out by the learned Counsel for the respondent that the appeal ought not to have been admitted, as the same was barred by law of limitation. This Court, therefore, passed an order that the contentions would be considered at the time of hearing of the matter.