( 1 ) THIS Rule was issued upon an application under Section 5 of Limitation Act praying for condonation of delay that is thought to have occurred in filing a memorandum of appeal in this Court which was filed on 24th of December 1969.

( 2 ) THE appeal is directed against a decree passed by the 3rd Court of Subordinate Judge at Alipore in Title Suit No. 7_5 of 1956. The suit was one for partition. At the stage after the preliminary decree had been passed and the Commissioner for Partition had submitted his report, the objections to the Commissioner's report was disposed of by the learned Subordinate Judge on 24th December 1968 and the Commissioner's report was accepted. It was then ordered by Order No. 138 dated 24-12-68 that the preliminary decree be made final with subsequent costs. Commissioner's report, plan and the Field Book be made part of the final decree.

( 3 ) THEREAFTER two applications for amendment of the plaint were made and by Order No. 154 dated 10-5-69 the learned Subordinate Judge rejected those applications saying in the order:"now that the final decree of partition passed, the Court has no jurisdiction to open up the decree at this stage on the present petition, hence, both the petitions be rejected. "

( 4 ) THE decree when drawn up was signed by the learned Subordinate Judge on 22-9-69 and Order No. 156 dated 22-9-69 recorded "final Decree sealed and signed this day". It now appears that Nrisingha Murari Dutta who was the plaintiff in the suit and was intending to prefer an appeal against the Final Decree in the partition suit made an application for certified copy of the Order No. 138 dated 24-12-68 which really was the judgment at that final stage of the suit and also of the final decree that was drawn up in the suit on the same day that is 28th November 1969. The copies were made ready for delivery on 15th December 1969 and the memorandum of appeal was filed in this Court accompanied by those certified copies on 24th December 1969.

( 5 ) THE said memorandum of appeal was returned to the learned Advocate for the appellant with the enforcement by the Stamp Reporter of this Court saying:"in time upto 24-3-69. Out of time on 24-12-69. In form (vide Order 41, Rule 1. C. P. C.) the date of prosecution by 275 days. In this connection if any be noted that the final decree in suit challenged in this appeal was drawn up and signed as late as on 22-9-69 i. e. , long after the prescribed period of limitation. In such a case, if the benefit of time occupied in the preparation of the decree after the delivery of judgment be allowed to be excluded from the period of limitation, the appeal will be within time. This is, however, a matter for the consideration of the Court. "

( 6 ) THE report of the Stamp Reporter is dated 13-1-70 and the memorandum was in fact returned to the learned Advocate for the appellant on 15th January 1970 and on the same day the said memorandum of appeal was riled in Court accompanied by the application under Section 5 of the Limitation Act 1963. Present Rule issued upon that application.

( 7 ) IN the application under Section 5 of the Limitation Act the material dates have been mentioned in paragraphs 3 and 4 and it has also been stated in paragraph 5 that as the decree was signed on 22nd September 1969 the benefit of time for delay in drawing up the decree should go in favour of the petitioner. For that reason in paragraph 6 of the petition it has been stated on behalf of the petitioner that there was no delay in filing the appeal. It has also been stated in that paragraph that in any event even if there was any delay there was no laches on the part of the petitioner and the delay should be condoned.

( 8 ) IN support of the petitioner's contention that there was no delay in filing the appeal the learned Advocate Mr. Chandra Nath Mukherjee has pointed out that the Stamp Reporter in his report has said that if the benefit of time occupied for the preparation of the decree after the deliver

Click Here to Read the rest of this document