SATYABADI BEHERA Vs. GIRISH CHANDRA DAS

JUDGEMENT

(1.) HEARD learned Counsel for the petitioner and learned Counsel for the opposite parties.

(2.) THE petitioner in this Civil Revision challenges the impugned order dated 8.2.2007 passed by the learned Civil Judge (Senior Division), Udala in FAO No. 2 of 2005. The learned Civil Judge condoned the delay of six days in filing the appeal and restored Civil suit No. 52 of 2004 to the file of learned Civil Judge (Junior Division), Udala setting aside the order dated 30.6.2005 whereby the suit was dismissed for default as well as the orders dated 4.8.2005 and 19.9.2005 whereby the restoration petition filed with the affidavit of the Advocate's clerk and the better petition for restoration filed by the plaintiff respectively were rejected.

(3.) THE learned Counsel for the petitioners -defendants vehemently argues that there was a delay of six days in presenting the appeal before the lower appellate Court and the lower appellate Court did not consider the fact that the plaintiff had not filed any application for condonation of delay while filing the appeal under Order 43, Rule 1 of the Civil Procedure Code. According to him, the lower appellate Court heard the appeal on merit and condoned the delay which was illegal and hence interference of this Court is warranted. In support of his contention, the learned Counsel for the petitioners has cited a decision of this Court in the case of Rajkumar Jindal v. Orissa Forest Corporation and Anr. reported in 1995 (I) OLR 634. He has also cited a decision of a Full Bench of this Court in the case of Ainthu Ch. Parida v. Sitaram Jayanarain Firm reported in 1984 (I) OLR 819 (FB), wherein it has been held that until the delay in preferring the appeal is condoned and so long as the Court does not decide to hear the appeal after hearing under Order 41, Rule 11 of the Civil Procedure Code, there is no appeal in the eye of law.