The main legal point established in the judgment is the mandatory requirement for an application for condonation of delay to accompany an appeal presented beyond the period of limitation, as per Order 41, Rule 3a of the CPC.

( 1 ) THIS appeal by defendant No. 4a is directed against the judgment and decree dt. 25-8-1980, passed by the I Addl. Civil judge, Belgaum, in R. A. No. 28/1980 on his file, dismissing the appeal as barred by time.

( 2 ) THE appeal was filed on 28-1-1980. Even taking into consideration the time taken for supplying the certified copies the appeal should have been filed on 25-1-1980 Therefore, there was a clear delay of three days in filing the appeal. There was no application for condonation of delay. Hence, the learned Civil Judge held that the appeal was barred by time and dismissed the appeal. It is against such judgment and decree that the present appeal is instituted.

( 3 ) THE learned counsel for the appellant strenuously urged before me that though the learned Civil Judge mentioned that there was delay of 25 days, in fact, there was delay of only three days. Such delay was inevitable, because, he had to come from Gokak to Belgaum to file the appeal. The certified copies were obtained by him on 25-10-1980 and the appeal was filed on 28-1-1980. So, he submitted that the short delay should have been condoned. He further submitted that since the office did not raise any objection, he had no occasion to give an application for condonation of delay. He further submitted that even if there was delay, the Court did not give him a chance to explain the delay. Hence, he submitted that appeal was entitled to succeed.

( 4 ) THE learned counsel for the respondent-plaintiff argued supporting the judgment and decree of the first appellate court.

( 5 ) THE sole point, therefore, that arises for my consideration in this appeal is : whether the first appellate Court was justified in dismissing the appeal as barred by time ?

( 6 ) AFTER amendment of CPC in 1976, or. 41, R. 3a is incorporated in CPC. It reads :"when an appeal is presented after the expiry of the period of limitation prescribed thereof, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court he had sufficient cause for not preferring the appeal within such period". Thus, it is obvious that after the amendment to CPC in 1976, it is imperative for the appellant to apply for condonation of delay if the appeal is instituted beyond time and such application shall be accompanied with the appeal memo and it shall be supported by an affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within the period of limitation. The provision is mandatory.

( 7 ) IN the instant case, it is obvious, that the appeal was instituted manifestly beyond three days after the period of limitation was over. That being so, it was imperative on the part of the appellant to enclose an application along with the appeal memo for condonation of delay as contemplated in Or. 41, R. 3a of CPC. He has not only not done so, but even at a later stage when it was brought to his notice that there was delay in the presentation of the appeal he did not submit any application for condonation of delay. It is under these circumstances, that the learned Civil Judge has dismissed the appeal as barred by time as it was manifestly barred by time. In view of the mandatory provision of Or. 41, R. 3a of CPC, the application for condonation of delay shall be accompanied with the appeal memo, if the appeal is presented beyond time. There is no occasion for the Court to say that the application for condonation of delay might be entertained later and there is no occasion for the appellant to request that such an application should be received even at this stage in the interest of justice. Since application for condonation of delay was not admitted accompanied with the appeal memo, though it was presented beyond time, the first appellate court was justified in rejecting the appeal barred by time.

( 8 ) IN fact, the High Court of Kerala had an occ