RAMESH PROSAD AGARWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an application under Section 5 of the Limitation Act for condoning the delay in filing the application for leave to appeal to the Supreme Court. The connected appeal in this Court was against the award of the Arbitrator. The judgment of this Court was delivered on May 12. 1970. Thereafter the petitioner made an application for the certified copies of the judgment and decree on May 13, 1970. The certified copies were made ready for delivery on July 3, 1970, The petitioner should have made the application for leave to appeal to the Supreme Court on August 1, 1970, taking into consideration the time taken for obtaining the certified copies. The petitioner, however. did not make the application. Instead the petitioner detected certain defects in the drawing up of the decree and made an application for the correction of the decree of this Court. The decree was directed to be corrected on August 21, 1970. It is not disputed that the petitioner is entitled to a fresh period of limitation from the date the decree was corrected, that is from August 21, 1970. The petitioner made an application for the judgment which was delivered by this Court in the appeal on May 12, 1970. It has been stated that the petitioner had already taken the certified copy of the judgment on July 3, 1970. The case of the petitioner is that the petitioner was advised by his learned Advocate to make an application for further correction in the decree inasmuch as the decree should have directed interest on the statutory allowance granted by this Court. The petitioner made a second application for the correction of the decree on February 12, 1971. That application was ultimately dismissed by this Court on April 30, 1971. The application for certified copies of the judgment and the amended decree which was made by the petitioner on November 3, 1970 had been delivered to the petitioner on 16-1-1971. The petitioner submits that he did not file the application for leave to appeal even after he received the certified copies of the amended decree and judgment as he was proceeding with the second application for correction of the decree.

(2.) Mr. Mitra, learned Advocate appearing for the petitioner, submitted before us that this fact of the filing of the second application for the further correction of the decree should also be taken into consideration for disposing of the present application.

(3.) Mr. Sen Gupta. learned Advocate appearing for the opposite party, submits that the petitioner did not disclose certain dates on which it is alleged that steps had been taken by the petitioner in regard to the filing of the application for the correction of the decree and also for the further correction of the decree. In our view, the petitioner should have given those particulars, but at the same time we are satisfied with the explanation given by the petitioner for the delay in filing the application for leave to appeal. It is not disputed that the petitioner had been proceeding in good faith and with due diligence the second application for the further correction of the decree. After considering the facts and circumstances of the case and also the affidavits filed by the parties we allow the application and condone the delay and direct that the application be registered. This order is, however, subject to the condition that the petitioner must, within a fortnight from date, pay to Mr. Pramatha Nath Palit, learned Advocate appearing for the opposite party a sum of Rs. 170/-. If the said sum is paid. Mr. Palit will grant a receipt therefor. In default of payment of the said sum, the application will stand dismissed with costs, hearing fee being assessed at three gold monurs.