MANSUR ALI Vs. MD USMAN

JUDGEMENT

(1.) THIS civil revision application has been filed by the petitioners for a succession certificate and it is directed against an appellate order dated the 27th May, 1971, by which the appeal filed by the petitioners was held to be barred by limitation. The petitioners had filed an application for a succession certificate which application was dismissed by the Subordinate Judge, first Court, Chapra, by an order dated the 13th January, 1971. An appeal was presented on the 19th February, 1971, without a certified copy of the judgment and order appealed against and there were other defects also in the memorandum of appeal. The certified copy of the order of the first court was filed on the 29th March, 1971. The limitation for filing the appeal had expired on the 24th February, 1971. It is stated that the appellate court had granted time for the removal of defects, more than once, and on 7th April, 1971, an application under Section 5 of the Limitation Act, for condoning the delay in filing the appeal, was made. The question of admission of the appeal was taken in the court of appeal below on the 25th May, 1971, and the impugned order followed on the 27th May, 1971. learned counsel for the petitioners has urged several points for consideration.

(2.) THE first point urged is that the application made under Section 5 of the Limitation Act had not been considered by the appellate court while passing the impugned order. Reading the order as a whole, I do not think that the contention is valid. Clearly, everything that had been pressed before the court of appeal below was considered before the final order had been passed. He then argued that when the appeal was presented on the 19th February, 1971, the certified copy of the order appealed against was not filed, on wrong legal advice. THEre is no validity in this argument either. Merely to say that a relevant document, was not filed on wrong legal advice is not enough for condoning the fact that a necessary document had not been filed at the proper stage. It is then contended that as the court had granted time on several occasions, for removing defects and then the certified copy of the judgment and order was filed within that time, it ought to be taken that limitation, if any, had been condoned and no written order condoning the delay in filing the appeal was necessary. I do not think that this contention can be accepted. A valuable right had accrued to the respondent to the appeal and by an order which was not explicit in the matter made in the absence of the respondents, could not be taken to be an order by which the limitation had been condoned impliedly.