DEBI BHADURI Vs. KUMARJIB BHADURI

JUDGEMENT

(1.) The matter in controversy arises out of an application under section 5 of the Limitation Act. The respondent opposite party filed a petition for judicial separation which was registered as Matrimonial Suit No. 373 of 1974, subsequently renumbered as 24 of 1976 of the 9th Court of Additional District Judge at Alipore, under section 10 of the Hindu Marriage Act. The suit was ultimately decreed on the amended prayer for a decree for divorce on July 19, 1977. The formal decree was drawn up on July 27, 1977.

(2.) The appellant petitioner being aggrieved preferred this appeal on Sept. 6, 1977 along with an application for condonation of delay in presenting the appeal The Stamp Reporter having reported that the amended provision of section 28(6) of the Hindu Marriage Act prescribing a shorter period of limitation was not to apply to this case, since the proceeding was instituted prior to the amendment of the Act, the appellant petitioner was permitted to withdraw the application for condonation of delay. Subsequently however the respondent after entering appearance raised a controversy that the appeal having been filed beyond 30 days as prescribed by the amended provisions was incompetent. The report of the Stamp Reporter was apparently based on the view expressed by our learned Brothers N.C. Mukherji and B.C. Roy, J.J. in F.M.A.T. 372 of 1977. We however took a different view and the controversy has now been resolved by the decision of the Full Bench made on a reference made by tis. The Full Bench held that the period of limitation to apply to a case pending at the date of commencement of the Marriage Laws (Amendment) Act, 1976 but decreed after such commencement would be as under the amended provision. In other words the period of limitation for presenting the appeal would be 30 days and not 90 days as prescribed under the repealed provisions of the Act. The Full Bench Reference was disposed of on July 31, 1979 and in view of the decision of the Full Bench, the appellant renewed her prayer for condonation of delay by filing a second application on Aug. 7, 1979 which is now being heard on contest by the respondent.

(3.) I, may be convenient to bear in mind the following material dates for consideration of the appellant'; case for condonation of delay. The suit was disposed of on July 19, 1977. Certified copies of the judgment and decree was Applied for on July 26, 1977. Decree was drawn up on July 27, 1977. The appellant obtained the copies on Aug. 1, 1977 and the appeals was filed on 6th Sept., 1977. The case of the appellant is that she was suddenly taken ill on July 17, 1977 and was confined to bed under medical advice upto Sept. 3, 1977. The ailment was Low Blood Pressure and Anaemia.