SURJIT KAUR Vs. TARSEM SINGH

JUDGEMENT

(1.) THE present appeal against the decree of divorce by dissolution of marriage, dated 1-3-1977, was filed in the first instance on 20-5-1977. At that time only certified copy of the judgment was annexed with the memo of appeal. Along with the appeal an application (C. M. No. 1563--C--II of 1977) under S. 5 of the Limitation Act for condonation of delay was also submitted. The appeal was admitted on 28-7-1977. However, no order was passed on the said application. However, no order was passed on the said application. The present application (C. M. No. 2099--C--II of 1977) was filed on behalf of the respondent in which it was prayed that under O. 41, R. 3a, Civil P. C. , it was mandatory for the Court to decide the question of limitation before admitting the appeal, and that as the appeal was patently time--barred, the order regarding admission of the appeal be reviewed and the application under S. 5 of the Limitation Act be decided in the first instance.

(2.) THE impugned judgment was passed on 1-3-1977. Copy of the same was applied for by the appellant on the last day of limitation, that is, on 1-4-1977. Though the copy was ready on 16-4-1977, but the same was obtained by the appellant seven days after, that is, on 23-4-1977. As the appeal was filed on 20-5-1977 along with certified copy of the judgment, the same was apparently time--barred after excluding the period spent in obtaining the copy of the judgment. Consequently along with the appeal, an application for condonation of delay under S. 5 of the Limitation Act was also filed. As the appeal was not accompanied by a certified copy of the decree, and Rs. 100.00to meet the typing charges had also not been deposited along with the appeal as required by the rules, the appeal was returned to meet the objection. The learned counsel for the appellant, however, struck to his contention that it was neither necessary to file the certified copy of the decree with the appeal, nor was it incumbent on the appellant to deposit Rs. 100.00, and the appeal was re--filed on 27-5-1977. The same having been returned a second time with a similar objection, the learned counsel persisted in his stand and re--filed the appeal on 15-6-1977. Finally, the necessary compliance regarding annexing the certified copy of the decree with the appeal was made on 29-6-1977, but the deposit of Rs. 100.00was still not made. From the copy of the decree filed, it is clear that the application for obtaining the copy had been made on 30-5-1977, which was ready on 2-6-1977, but its delivery was taken by the appellant as let as 8-6-1977. It is not disputed that unless the delay is condoned, the appeal even as originally filed along with certified copy of the judgment was time--barred, and certified copy of the decree was still filed quite late.

(3.) APPEAL dismissed.