1. Not on board. Mentioned. Taken up on board on request.

Heard. Admit. Heard forthwith by consent. The Advocate for the respondents waives service.

2. This Notice of Motion is taken out for condonation of delay in filing the cross objections in Appeal No. 114 of 1999.

3. It is the case of the appellant/original respondent in the Appeal that considering the provisions of Order 41, Rule 22 read with Rule 1, 12 and 14 of the Code of Civil Procedure, there is no delay as such in filing the cross- objections, in as much as that there had been no service of notice of hearing of the appeal at any point of time upon the appellant- respondents. In any case and assuming that the applicant- respondent had notice of the hearing of the appeal on 16th February, 1999 on which day the appeal was admitted, there is delay of only 33 days in filing the cross objections and in the facts and circumstances of the case, there is sufficient cause for condonation thereof.

4. On the other hand, it is the case of the opponent/original appellant in the appeal that the applicant/respondent had the notice of the hearing of the appeal on 16th February 1999 on which they waived service of notice and therefore the cross objections ought to have been filed on or before 12th March, 1999 and in any event by 16th March, 1999. The cross objections were lodged only on 26th May 1999 and therefore there was delay of 71 days in filing the cross objections. It is their further case that there is unexplained delay of 3117 days i.e. from 16th March, 1999 till 27th September 2007, the day on which the present Notice of Motion was taken out, inspite of the knowledge to the applicant- respondents that the cross objections were under objections for having filed beyond the period of limitation.

5. The learned Advocate appearing for the applicant- respondent while placing reliance on the decision of the Division Bench of the Delhi High Court in Union of India Vs. Shibu Ram Mittal reported in 1999(49) DRJ 166 and MANU/ DE/ 0749/ 1998 as well as of the Division Bench of Madras High Court in the matter of (Kancherla) Pushkaramba and another Vs. Kancherla Nagaratnamma, reported in A.I.R. 1926, Madras 283 and drawing our attention to the provisions of law comprised under Rule 22, read with Rule 12 and 14 of Order 41 of the Code of Civil Procedure submitted that the record nowhere discloses service of notice of hearing of the appeal upon the applicant- respondent so as to enable the opponent-appellant to contend that there is delay in filing the cross objections. According to the learned Advocate for the respondents, service of notice about the hearing of the appeal is the prerequisite for commencement of period of limitation for filing of the cross objections on behalf of the respondent in the appeal. In the case in hand, according to the learned Advocate, no such notice was served and by no stretch of imagination there was any delay in filing the cross-objection. Without prejudice to this contention, it is sought to be contended on behalf of the respondent that moment there was objection on the part of the original appellant in the appeal, the respondent immediately took out Notice of Motion explaining the circumstances under which the cross objections came to be lodged only on 26th May, 1999. Considering the facts disclosed in the Affidavit in support of Notice of Motion, according to the learned Advocate assuming that the respondent had knowledge about the appeal being admitted on 16th February 1999, considering the fact that the circumstances in which there was delay in filing the cross objection having been explained by the applicant, the delay should be condoned. He further submitted that the expression "the day fixed for fixing the appeal" in Rule 22, does not give clear idea about the date which should be considered as the day for commencement of limitation since the provision of law in that regard is vague and as has been held by the