PRATIMA MONDAL Vs. DHARIDNAR MONDAL

JUDGEMENT

(1.) This is an application for condonation of delay in filing a matrimonial appeal of 197 days. The wife is the applicant before this Court and the decree under appeal is a decree for divorce. It appears that during the continuance of the matrimonial suit, an application under Sec. 24 of the Code of Civil Procedure was preferred, on behalf of the wife, before the learned District Judge and in connection with the said application, an order for stay of further proceedings was issued by the learned District Judge, limited upto 14tb Feb., 1997. On the date fixed, the miscellaneous case arising cut of the said Sec. 24 application had stood adjourned ; but the records reveal that there was no specific extension of the order of stay. It is the case of the wife before this Court that in view of the earlier order of stay the wife had an impression that there was no question of final disposal of the matrimonial suit during the pendency of the miscellaneous case. However, because of expiry of the specific time period for which the interim order of stay was operative, the learned Additional District Judge took up the suit for final disposal and disposed of the same by bis order, dated 19th March, 1997, though on the said date, the wife not having been present nor her learned Advocate, on argument could be advanced on her behalf, It appears from the record that an application under Order 9 Rule 13 of the Code of Civil Procedure had been preferred thereafter for the purpose of setting aside of the allegedly ex-parte decree and such application, ultimately, proved abortive. The miscellaneous case stood dismissed on the ground that the matrimonial suit bad been disposed of, in the meantime. In such a situation, the wife claims to have obtained knowledge of the allegedly ex pane decree on 20th June, 1997, and thereafter, the miscellaneous case arising out of an application under Order 9 Rule 13 of the Code of Civil Procedure laving continued, till its final disposal, no appeal could be preferred the appeal was preferred actually on 11th Nov., 1997, after obtaining the certified copy of the decree under appeal on 17th July, 1997, in the aforesaid facts and circumstances and also is view of alleged illness of the wife during the interregnum.

(2.) Mr. Ghosh, appearing on behalf of the husband/respondent, who has married for the second time, has emphasised the absence of end document in support of the wife's case of illness and has also emphasised very strenuously that since the wife had preferred to take recourse to Order 9 Rule 13 of the Code of Civil Procedure, she could not claim entitlement to maintain this appeal after dismissal of the said proceed because that finally clinched the propriety of the decree under appeal.

(3.) Regarding the ground of challenge to the case of illness, on behalf of the wife, we are of the view that there is a statement on on the which cannot be said to have base firmly dead or controverted, behalf of the husband, excepting making of some final and vagus statement about the wife being found in good health, by the husband from her movements, about which no particulars could be given. Abet the legal infirmity based on the result of proceeding under Orderly Rule 13 of the C. P. C. as raised by Mr. Ghosh, we do not think the there is much substance in the said contention as it is well settled that the remedy under the said provisions does not, in any way, exclude the remedy by way of appeal because the criteria for consideration under Order 9 Rule 13 of the C. P. C. are entirely different from those, which are needed to be considered for deciding the propriety of the judgment under appeal. In this context, we also recall the ratio laid down by Supreme Court in a large cumber of decisions that the approach, which the Court should take in dealing with an application under Sec. 5c the Limitation Act, is that it must be presumed that no appellant like to get his appeal barred by limitation and it is not necessary for appellant to explain day to day delay ; but mere substantial explanation which could be found to be sufficient to Court would be good enough. Following the said ratio and considering the facts and circumstances of the present case and also the absence of merits in the submissions made by Mr. Ghosh, we allow this application condone the delay in preferring this appeal as we are of the view that the delay has been sufficiently explained by the appellant and direct that the appeal be now registered, if otherwise in form. There will be no order as to costs.