RAGHUNATH DEY Vs. NIRMAL CHANDRA DEY ALIAS NILAMANI

JUDGEMENT

(1.) HEARD .

(2.) THIS Civil Revision is directed against the order passed on 23.8.2000 in Title Appeal No. 13 of 2000 of the Court of District Judge, Balasore. Learned District Judge, after hearing the parties, rejected the application under Section 5 of the Limitation Act filed by the petitioner and accordingly dismissed the appeal being barred by law of limitation.

(3.) IT is not in dispute between the parties that First Appeal No. 298 of 1999 was filed by the petitioner in this Court and that such F.A. was found not maintainable as per the order of this Court passed on 27.9.1999. Though the appeal was filed on 28.1.2000 but the intervening period has been explained by the petitioner showing his illness. Admittedly, there is nothing on record which was available to the lower appellate Court to indicate that during that period appellant was attending any Court or was not ill. That aspect was not duly considered when the plea of illness was supported by a medical certificate. It is true that the conduct of the petitioner, as noted in the impugned order, indicates that he is a habitual defaulter, but since the period between 28.9.1999 to 27.1.2000 has been explained and that is found to be sufficient, therefore, this Court finds that the learned District Judge without due consideration of that factual aspect unreasonably rejected the application under Section 5 of the Limitation Act emphasising on the past conduct of the petitioner. That does not appear to be a correct approach nor that approach is in the interest of justice. Under such circumstance, while setting aside the impugned order, the delay is condoned subject to payment of cost of Rs. 2,500/ - (two thousand and five hundred). The cost be paid within a period of one month and the receipt be filed in the Court below. For a period of one month, the final decree proceeding shall remain stayed and thereafter any appropriate order may be passed by the lower appellate Court on proper application.