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Judgment
Srinivasan, J.—The respondent filed O.S. No. 187 of 1987 on the file of Sub Court, Namakkal for partition and separate possession of
1/6th share. The petitioners were set ex parte on 18-12-1988 and a decree was passed on that date. The petitioners filed I.A. No. 247 of 1989
for condonation of delay of four days in seeking to set aside the ex parte decree and I.A. No. 248 of 1989 for setting aside the ex parte decree.
The petitioners were directed to pay a sum of Rs. 150/- by way of costs as condition for setting aside the ex parte decree. Time was granted till 9-
9-1991. The petitioners did not pay the costs and the application was dismissed on 19-11-1991. It is the said order dated 19-11-1991 which is
sought to be challenged in litis revision petition. The revision petition was presented only on 11-12-1992. Before going into the merits of the
application for condonation of delay of 292 days in filing the revision petition, a preliminary objection is raised by learned counsel for the
respondent. He contends that this application for condonation of delay in filing the revision petition should be dismissed in limine. According In him,
the petitioners applied for certified copies of fair and decretal orders of the Court below in I.A. No. 247 of 1989 only on 30-10-1992, which is
beyond the period of 90 days from the date of order i.e. 19-11-1991. It is contended by him that if a party applies for certified copies or printed
copies of the order challenged in appeal or revision beyond the period of 90 days, he will not be entitled to file an application for condonation of
delay in the appellate Court or in the revisional Court in filing the said appeal or revision. According to him, S. 5 of the Limitation Act can be
invoked only by a person who applies for certified copies or printed copies of the orders within the time prescribed for preferring the appeal or
revision.
2-A. Reliance is placed by learned counsel for the respondent on the judgment of a Division Bench of litis Court in The Land Acquisition Officer v.
Kannan Pillai and others (1992-2-L.W. 28). In that case, there was a delay of 640 days in filing the appeal against the judgment and decree in
L.A.O.P. No. 29 of 1981 on the file of Sub Court, Salem. In the affidavit filed in support of the petition originally, there was no explanation at all
as to why the application for copies was made after a period of about eight months from the date of judgment and decree viz. 7.12.1984. An
opportunity was given to counsel for the appellant to file an additional affidavit. In the additional affidavit an explanation was attempted, but the
Bench held that the said explanation was wholly unacceptable. It was also held by the Bench that the averments made in the additional affidavit
were not substantiated by production of relevant documents. The Bench took the view that the delay of 640 days has not been explained at all by
the appellant and consequently dismissed the application under S. 5 of the Limitation Act. In the course of their judgment, the Bench referred to a
judgment of this Court in Ramalingam Pillai v. Arunachalam Pillai ((1988) II M.L.J. 139) which had extracted the following passage from the
judgment in A.D. Partha Sarathy Vs. State of Andhra Pradesh,
In computing or calculating the period of limitation from planted point the sub-Section enables the exclusion of a time from that plaited caused by
an event that intervened between the commencement and the termination of the said period. It has no concern with any events anterior to the
commencement of the period of limitation or posterior to the said period.
After quoting the said passage, the Bench observed that the delay in that case was not simply 640 days but more by about 105 days, which was
the period between the date of the copy application viz., 5-8-1985 and the date when the copy was made ready viz., 20-11-1985. The Bench
held that the said delay of about 105 days also stood unexplained. Again the Bench quoted another passage from the same judgment, which reads
thus:-
S. 5 of the limitation Act contemplates cases where a party having obtained all the required copies well before the expiry of the period of limitation
prescribed for preferring an appeal has been unable to do so even on the last day owing to circumstances beyond his control and thus viewed, the
petitioner cannot be permitted to approach this Court and ask for the condonation of the delay of 159 days.
The Bench expressed its concurrence with the view found in the above passage. Relying on this part of the judgment, learned counsel contends that
the Bench held that no application under S. 5 of the Limitation Act is maintainable, if an application for copies of judgment and decree had been
made in the trial Court after a period of 90 days, which is the period prescribed for appeal or revision. Reliance is placed on the Mend Note in the
report, which reads thus:-
Appeal sought to be filed by land Acquisition Officer with petition to excuse delay of 640 days-Condonation of delay declined - S. 5 contemplates
cases where a party having obtained certified copy of judgment and decree before expiry of period of limitation was unable to prefer appeal due to
circumstances beyond control.
I am unable to agree with this contention. The interpretation of the judgment of the Bench given by learned counsel for the respondent is wholly
erroneous. The Bench has not held that no application under S. 5 of the Limitation Act is maintainable, if applications for certified copies of
judgment and decree are made beyond the period of 90 days. On the other hand, the Bench has only held that the period taken by the Court for
issuing certified copies of judgment and decree should not be excluded under the provisions of S. 12 of the Limitation Act when the delay in filing
the appeal or revision is calculated by the appellant or petitioner, Thus, in that case, the Bench held that the delay was really 640 days plus 105
days and not merely 640 days as contended by the appellant therein. The view taken by the Supreme Court in A.D. Partha Sarathy Vs. State of
Andhra Pradesh, and by this Court in Ramalingam Pillai''s case (( 1988) II M.L.J. 139) was also the same. It was not in any way different. It was
held that for the purpose of calculating the delay, the computation must be made from the 90th day after the date of judgment on which day the
lime prescribed for preferring the appeal or revision expires. If the application for copies of the judgment and decree are filed after the period of 90
days from the date of judgment, naturally, the time taken by Court for issuing certified copies cannot be excluded under S. 12 of the Limitation
Act. The Division Bench has only held that S. 12 cannot be invoked by the party. On the other hand, the Division Bench has not held that S. 5
cannot be invoked by a party who has applied for certified copies of judgment and decree after the expiry of a period of 90 days. The party has to
explain that period also as part of the delay Hence, the preliminary objection is overruled.
In this case, the delay is sought to be explained by the petitioner that after the order was passed by the trial Court, he was advised that an
application should be filed in the trial Court itself for extension of time to pay the costs and to set aside the order dated 19-11-1991. According to
him, such an application was filed, but it was not numbered and it was returned on 18-8-1992 as not maintainable. According to the affidavit, he
filed for certified copies of fair and decretal order an application on 30-10-1992 and the copies were delivered on 5-11-1992. The revision was
presented to this Court on 11-11-1992. The above explanation is wholly unsatisfactory. The affidavit of the petitioner has carefully and deliberately
omitted to disclose the date on which the application was filed in the trial Court for setting aside the order dated 19-11-1991 and extend the time
for payment of costs. The copies of the affidavit and the petition have been included in the typed set by the petitioner. They disclose that such an
application was filed only on 3-8-1992. There is no explanation whatever as to why the petitioner did not file the application in the trial Court
between 19-11-1991 and 3-8-1992. The entire period remains unexplained. Again, there is no explanation for the delay between 18-8-1992 and
30-10-1992. As per the judgment of the Division Bench, the period between 30-10-1992 and 5-11-1992 cannot be excluded. In the
circumstances, there is no explanation whatever for the entire delay of 292 days. The delay is inordinate and in the absence of valid explanation the
petitioner is not entitled to get a relief in this Court. This petition is dismissed.