RATAN MALLA Vs. SEFALI MALLA

JUDGEMENT

(1.) learned counsel for the appellant-petitioner and Mr. M. Kar Bhowmik, learned senior counsel, assisted by Mr. R. K. P. Singh, learned counsel for the respondent.

(2.) 4 (four) days delay is the subject- matter of this condonation application. Mr. A. C. Bhowmik, learned counsel for the petitioner has contended that those few days delay, not being inordinate delay in preferring this belated appeal, i.e. MAT App. No. 01 of 2003, has been exclusively and sufficiently explained in Paragraphs 3 and 4 of this petition and on consideration of those averments the delay in question may be condoned.

(3.) Refuting the submissions advanced on behalf of the petitioner, Mr. M. Kar Bhowmik, learned senior counsel for the respondent, has vehemently argued that in the instant case which is governed by the Hindu Marriage Act, 1955 (for short the Act), the provisions of the Limitation Act, 1963 (hereinafter referred to as the Limitation Act) do not apply. Thus the question of condonation of any delay under Section 5 of the Limitation Act does not arise. According to him, the Act. being a special legislation. does provide distinctly a period of 30 (thirty) days for filing an appeal from the date of decree or order in Section 28(4) of the Act without contemplating any provision for filing of a belated appeal. More so, in the Schedule under the Limitation Act, there is no provision providing for an appeal under the Act. In view of this statutory position. there is no scope for condonation of any delay in preferring an appeal although the delay is only for four days as in the Instant case. He has also urged that when the impugned Judgment was passed on 29-11-2002, the petitioner had applied for certified copy of the said Judgment only on 10-12-2002 causing thereby a delay of 11 days; but the said delay has not also been properly explained.