MADHUMATI SURESH RAUT Vs. NAMDEO TUKARAM YADAV

JUDGEMENT

(1.) The petitioners challenge the Order dated 19-3-1991 passed by the Additional District Judge, Baramati in Civil Miscellaneous application No. 16 of 1991. By the impugned order, the lower Appellate Court has rejected the application filed by the petitioners for setting aside the order of dismissal of the application for condonation of delay in filing the appeal by the petitioners.

(2.) The respondents herein filed Suit No. 149 of 1979 for specific performance of an agreement which was decreed on 7-10-1985 against the petitioners. The petitioners preferred an appeal in the lower Appellate Court and as there was delay in filing the appeal, it was accompanied by a Miscellaneous civil Application No. 809 of 1986 being an application for condonation of delay. Originally the said application with the appeal was lodged in the District Court at pune but subsequently it was transferred to the lower Appellate Court at Baramati and registered as No. 17/b/1989. The said application for condonation of delay bearing No. 17/b/1989 was fixed for hearing on 29-1-1991. However, as the petitioners failed to appear before the Court, nor were represented by any advocate, the said application came to be dismissed for default on the said day i. e. on 29-1-1991. The petitioners thereafter filed Miscellaneous Application No. 16 of 1991 for restoration of the Miscellaneous Application No. 17/b/1989. The same was filed on 11-3-1991. upon hearing the said application, the lower Appellate court by its Order dated 13-7-1991 dismissed the said application holding that the same was filed beyond the period of limitation and also that it was not accompanied by any application for condonation of delay, nor the petitioners had shown any sufficient cause for the delay. Hence, the present petition.

(3.) The learned Advocate appearing for the petitioners, while challenging the impugned order, submitted that the lower Appellate Court erred in dismissing the application filed by the petitioners for restoration of the application for condonation of delay solely on the ground that the same was beyond the period of limitation, ignoring the fact that the application was under section 151 of the code of Civil Procedure, 1908, hereinafter called as "the C. P. C. " and not under any other provisions of the Civil Procedure Code and therefore the Court below could not have held that the provisions of Article 122 of the Limitation Act, 1963, hereinafter called as "the said Act" were applicable, but ought to have considered that the provisions of law of limitation which are attracted are comprised under Article 137 thereof. Drawing attention to Article 122 of the said act, it was sought to be contended that it applies only in case of application for restoration of suit or appeal or an application for review or revision but it does not apply to the proceedings relating to the application for restoration of application for condonation of delay. In fact, according to the learned Advocate, there is no specific provision prescribing the period of limitation for any such application and therefore the residuary provision under Article 137 would apply to such proceedings. It was also further submitted that the Legislature in its wisdom has made a specific provision under Order 41, Rule 19 for a situation arising out of dismissal of the appeal under Rules 17 of Order 41 of the Civil procedure Code but has not made any similar provision in relation to application for condonation of delay filed along with the appeal filed beyond the period of limitation and therefore such an application is required to be considered as one under section 151 and not under Order IX of the Civil Procedure Code.