DURGA DEVI Vs. LALMANI KUER

JUDGEMENT

(1.) This appeal has been preferred by the above named defendants-appellants against the judgment and decree dated 25.9.1995 passed in Title Appeal No, 15 of 1989 dismissing the appeal as being time barred and thereby confirming the judgment dated 22.12.1987 passed in Partition Suit No. 111 of 1981 by the Sub Judge, I. Palamau at Daltonganj.

(2.) The predecessors of some of the respondents had filed the abovementioned partition suit which was decreed by the original court and then appeal was preferred. While the appeal was filed, Seristedar put a note to the effect that the appeal is barred by limitation for about 13 days. The appellant did not file any condonation petition and contended that there is wrong calculation made by the Seristedar and the appeal is within time. Notice was issued on the limitation matter to the respondents and some of the respondents appeared and it appears that on 25.9.1995, the matter was heard by the learned District Judge, Palamau and by a scrappy order it has been held that the appeal is barred by limitation and by the impugned order/judgment the appeal was dismissed and hence the second appeal.

(3.) Mr. P.K. Prasad, appearing on behalf of the appellants submits that such sort of dismissal of the appeal on ground of limitation is bad in the eye of law. The appellants were contending that there was wrong in the calculation regarding the limitation period in filing of the appeal by the office of the "District Judge and in that view they had filed a petition also." According to the appellants, if on scrutiny, the learned District Judge could find that the notes given by the Seristedar was correct and the appeal is really time barred then opportunity ought to have been given to the appellants to file a condonation petition as required under Section 5 of the LIMITATION ACT, 1963 but without giving that opportunity the appeal has been dismissed, which is bad in the eye of law.