MANORAMABAI Vs. STATE OF M P

JUDGEMENT

(1.) This order shall also govern the disposal of WP.No.26/12 as in both the petitions the order under challenge is dated 21/12/11 passed by IX ADJ, Indore in Civil Regular Appeal No.12/11 whereby the application filed by the petitioner under Section 151 CPC for deciding the application under Section 5 of Limitation Act filed by the respondents first was dismissed, present petition has been filed. Short facts of the case are that the petitioner filed a suit for declaration and permanent injunction against respondent Nos. 1 to 3 which was numbered as Civil Suit No.49-A/90 in which an ex-parte decree was passed in favour of petitioner on 01/12/1993. An appeal was filed by respondent Nos. 1 to 3 against the petitioner on 25/04/11.

(2.) Since the appeal was not in time and was barred by more than 18 years, therefore, an application was filed by the respondent Nos. 1 to 3 alongwith the appeal under Section 5 of Limitation Act alleging that the delay be condoned. The application was opposed by the petitioner in both the petitions. Since an effort was made to hear and decide the application alongwith the appeal, therefore, a specific application was filed by the petitioner of WP.No.172/12 to the effect that before proceeding further the application for condonation of delay be decided. Similar type of objection was raised by the petitioner of WP.No.26/12 orally who is respondent No.4 in the present petition. Since the decree was only in favour of petitioner and the suit property was transferred by the petitioner, therefore, respondent No.4 was impleaded as party upon the application filed by the respondent No.4. The application filed by the petitioner under Section 151 CPC was opposed by the respondent Nos. 1 to 3. After hearing the parties learned Appellate Court dismissed the application, against which present petitions have been filed.

(3.) Learned counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that the appeal can be decided only if a competent appeal is filed. It is submitted that since the appeal was not filed in time, therefore, there was no appeal in the eye of law. It is submitted that unless and until the application under Section 5 of Limitation Act is allowed the appeal cannot be heard. Learned counsel placed reliance on Order 41 Rule 3A , which has been inserted vide amendment Act No.104 of 1976 w.e.f. 01/02/77, which reads as under:- Rule 3A. Application for condonation of delay.