PRAMILA DUBEY Vs. SUDAMA BAI

JUDGEMENT

(1.) This appeal filed under Order 43 Rule 1(u) of the Code of Civil Procedure assails the judgment dated 10.10.2011 passed in Civil Appeal No.6A-2011. The appellant contended that the appellant/plaintiff filed a civil suit No.24-A/2008 for declaration and permanent injunction. The said suit was decreed on 30.9.2008 by the trial court. The respondent nos.1 and 2 were not party to the said civil suit, they preferred civil appeal no.6A/2011 on 16.11.2009 with an application for condonation of delay. The court below framed two issues and by impugned judgment dated 10.10.2011 remitted the matter back before the trial court with certain directions as contained in paragraph 13 of the impugned judgment.

(2.) Shri S.P. Tripathi, learned counsel for the appellants assailed it on the ground that appeal was admittedly filed with a delay of one year and seven days and the appellants were aware about the said delay. Therefore, their appeal was pregnant with an application under Section 5 of the Limitation Act. The court below without putting the present appellant to notice and without assigning any reasons, mechanically allowed the said application for condonation of delay by order dated 12009. The lower appellate court by subsequent orders followed this order and passed the judgment of remand against the present appellant/plaintiff.

(3.) Learned counsel for the appellants placed reliance on relevant provisions of Code of Civil procedure and contended that the court below has erred in allowing the application for condonation of delay by holding that the appeal is within limitation. In fact, the appeal was not within limitation and the appellants themselves were conscious about this fact which persuaded them to file an application for condonation of delay.