Mustt. Saira Khatoon & Ors vs Asmal Begum & Ors

Bibek Chaudhuri, J

CAN 24617 of 1996 is an application under Section 5 of the Limitation Act filed by the appellants /petitioners seeking condonation of delay of 63 days in filing the appeal.

By an order dated 14th March, 2019 the appellants/petitioners were directed to serve copy of the application under Section 5 of the Limitation Act upon the opposite parties. Mr. Tarak Nath Halder, learned advocate for the petitioners has filed affidavit of service on perusal of which it is ascertained that the notice of the instant application was duly served upon respondent Nos. 1, 3, 4,6 and 7. However, it was returned with postal endorsement within 'not claimed' in respect of respondent/opposite Nos. 2 and 5. Since the opposite party Nos. 2 and 5 did not claim to receive the notice in spite of tender, it is presumed to be served upon oath.

Since notice was served upon all the respondents, there is no predicament to take up the instant appeal under Section 5 of the Limitation Act.

Affidavit of service be kept with the record.

In their application under Section 5 of the Limitation Act, it is pleaded by the appellants/petitioners that after delivery of judgment by the learned Court of Appeal, the petitioners applied for certified copy of the same without applying for the copy of the decree. It was not pointed out by the learned advocate or his clerk who conducted First Appeal on behalf of the petitioners that certified copy of the decree was also necessary to file a second appeal before this Court. When the said fact was brought to the knowledge of the petitioners, they immediately requested the learned advocate appearing on behalf of them in the Lower Appellate Court to obtain certified copy of the decree. Unfortunately, at the relevant point of time the learned advocate for the appellants was busy for medical treatment of his uncle who was also a senior reputed advocate of the local Bar. Subsequently, the said uncle of the learned advocate for the appellants died on 25th December, 1995. After completion of his last rites, the learned advocate for the appellants/petitioners could get time to take step to get certified copy of the decree passed by the learned Lower Appellate Court. In this process there was delay of 63 days in preferring the appeal.

The petitioners have prayed for condonation of delay in preferring the appeal.

I have heard the learned advocate for the petitioners. I am of the view that the petitioners have been able to explain the period of delay to the satisfaction of the Court and they were prevented by sufficient cause in not preferring the appeal within statutory period of limitation.

Accordingly, delay in filing the appeal is condoned.

The record of the instant appeal be placed before the Division Bench having determination for hearing on the question of admission of appeal under Order XLI Rule 11 of the Code of Civil Procedure.

CAN 24617 of 1996 is, accordingly, disposed of.