PRAMILA Vs. SHANTABAI ALIAS SHALINIBAI

JUDGEMENT

(1.) Rule returnable forthwith. Heard finally by consent of the parties.

(2.) In a suit for partition and separate possession filed by the respondents/plaintiffs i.e. Special Civil Suit No. 5/1976 a decree came to be passed on 31-3-1983 by the Civil Judge (S.D.), Chandrapur. The petitioners/defendants therein instead of filing appeal in the District Court, Chandrapur on a wrong legal advise filed the same in the High Court within the limitation prescribed for filing First Appeal in the High Court. On 16-8-1994, the High Court held that appeal lay before the District Judge and not the High Court and, therefore, the memo of appeal was returned for proper presentation. On 19-8-1994, the petitioners presented the appeal before the District Judge, Chandrapur along with an application for condonation of delay in filing appeal and for exclusion of time spent in the High Court. That application for condonation of delay was registered as Misc. Civil Application No. 122/2003 i.e. application (Exh.6) and, hence, this Writ Petition.

(3.) Advocate Shri Khajanchi for the petitioners argued that the decree that was passed for partition and separate possession was put to challenge by filing First Appeal in the High Court on the advise tendered by Advocate Shri P.M. Gundawar and that it remained pending in the High Court till the High Court held that the appeal was maintainable before the District Judge under order dated 16-8-1994. He then argued that immediately thereafter within three days he presented the said memo of appeal before the District Judge, Chandrapur on 19-8-1994 and, therefore, the petitioners were entitled to the exclusion under Section 14 of the Limitation Act, 1963.