JAGANNADHA RAO, J.

( 1 ) THIS is an application to condone the delay of 222 days in the presentation of this appeal.

( 2 ) THE Land Acquisition Officer granted compensation at the rate of rs. 3,600/- per acre but on reference to the Civil Court u/s. 18 of the Land acquisition Act, the civil court granted compensation at Rs. 48,400/- peracre. The judgment of the court was delivered on 12-10-81. An appeal in this court was filed by the State on 15-9-82. Along with the appeal no application for condonation of delay was filed but such an application was filed only on 16-7-84. The Registry had not taken any action for returning the memorandum of appeal till 11-7-84, when, for the first time, the papers were returned directing the appellant to state how the appeal was in time. The appeal was represented along with the delay condonation application.

( 3 ) IN the affidavit filed in support of the application for condonation of delay, it has been stated by the Tahsildar, Land Acquisition, Eluru. W. G. Dist,, that the certified copies of the judgment and decree were received from the office of the Govt. Pleader, Eluru on 28-11-81 and that the Collector, w. G. was requested to grant approval for the proposal to file an appeal by letter, dt. 15-12-81 which was actually sent to the Collector on 26-12-81. Thereafter the Spl. Officer, Govt. Pleader s office in the High Court of A. P. , hyderabad was addressed by the Collector, W. G. on 2-2-82 to inform him as to the amount required for filing the appeal Thereafter on 25-2-82 a letter was received from the Govt. Pleader s office and a letter was addressed on 1-3-82 to the Collector for filing expenses. A series of reminders were sent to the Collector, W. G. , till September, 1982 requesting for grant of sufficient funds to enable the appeal being filed. Funds were received from the collector s office only thereafter and the amount was drawn from the budget allotted to the Eluru taluk on 8-9-82 and the amount was sent to the Special officer, Govt. Pleader s office on 10-9-82 and thereafter the appeal was filed on 15-9-82 as already mentioned.

( 4 ) IT may also be noted that after the judgment of the trial court was rendered on 12-10-81, an application for a copy thereof was made, as is visible from the certified copy of the judgment* on 16-10-81 and the copy was made ready by Court on 11-l 1-81.

( 5 ) IT is on these facts that the State has applied for condonation of delay under Section 5 of the LIMITATION ACT, 1963.

( 6 ) A counter has been filed on behalf of the claimant contesting the above application.

( 7 ) THE learned counsel for the respondent Sri Y. B. Tata Rao, raised three contentions: (1) that the appeal cannot be treated as filed in this court on 15-9-82 but can be treated as filed only 16-7-84 when the application for condonation of delay along with an affidavit for that purpose, was filed into court ; (2) that no sufficient cause is made out for the condonation of delay ; (3) even otherwise this court should not exercise discretion in favour of the appellant in the circumstances of the case.

( 8 ) ON the first point, the learned counsel for the respondent has placed strong reliance on Order 41, Rule 3-A, C P. C introduced in 1976 for contending that the application for condonation of delay should accompany the memorandum of appeal, whenever the latter is presented out of time, and otherwise it is argued, the memorandum must be treated as presented when the application for condonation is actually filed. For that proposition the learned counsel relies upon a judgment of the Karnataka High Court in madhukar vs. Anant.

( 9 ) ORDER 41, Rule 3-A provides that if an appeal is to be presented after the expiry of the period of limitation specified therefor, it "shall" be accompanied by an application supported by an affidavit explaining the delay.

( 10 ) IT is true that the rule is couched in mandatory terms and states that the memorandum shall be accompanied by the application for condo

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