An unsuccessful applicant under Order IX, Rule 13 of the Code of Civil Procedure cannot ask the appellate Court to extend the time for filing of the appeal by adding the periods taken up in such unsuccessful proceedings.

1. THIS is a defendant's second appeal and the only question of importance raised is about limitation. How this question of limitation arises would be clear only from the narration of facts.

2. ON or about January 15, 1990 Basudeb Bag, since deceased, instituted Title Suit No. 34 of 1990 in the Court of the learned Civil Judge (Junior Division), Second Court at Barasat, District: North 24-Parganas, inter alia, for ejectment and recovery of mesne profits. During the pendency of the suit, the original plaintiff, Basudeb Bag, died and his heirs and legal representatives were substituted in the suit as substituted plaintiffs by order No. 34 dated September 23, 1997.

The defendant entered appearance in the suit and filed his written statement. Ultimately, however, the defendant did not contest the suit. Consequently, by judgment and decree dated July 27, 2000 the learned trial Judge decreed the suit ex parte with costs against the defendant. The learned Judge, inter alia, held that the said plaintiffs reasonably required the suit premises for their own use and occupation and for accommodation of the members of their families.

3. THE defendant filed an application under Order IX, Rule 13 read with Section 151 of the Code of Civil Procedure for recalling of the said ex parte decree. The said proceeding was registered as Miscellaneous case No. 47 of 2000 in the Court of the learned Civil Judge (Junior division), Second Court at Barasat, District: North 24-Parganas.

4. THE learned Judge by order dated May 4, 2005 rejected the said application for recalling of the ex parte decree, on merits. The defendant, being aggrieved by and dissatisfied with the said order dated May 4, 2005 passed in Miscellaneous Case No. 47 of 2000, preferred an appeal in the Court of the learned District Judge, which was registered as Misc. Appeal No. 34 of 2005. The appeal was eventually transferred to the Court of the learned Additional District Judge, Fast Track court No. 4 at Barasat, District: North 24-Parganas.

5. THE learned Judge in the Lower Appellate Court by judgment and order dated May 15, 2006 dismissed the said appeal.

6. THE defendant challenged the order of the Lower Appellate Court before this Court by filing an application under Section 115 of the Code of civil Procedure, which was registered as Civil Order No. 3345 of 2006 in the Civil Revisional Jurisdiction of this Court. S. P. Talukdar, J. by His Lordship's judgment and order dated march 7, 2007 rejected the said revisional application under Section 115 of the Code of Civil Procedure.

7. ONLY on March 23, 2007 this defendant preferred an appeal challenging the said ex parte decree dated July 27, 2000. The appeal was tendered under Title Appeal No. 12 of 2007 in the Court of the learned district Judge at Barasat, District: North 24-Parganas. As the appeal was presented after the expiry of the prescribed period of limitation, this defendant filed an application for condonation of delay invoking the provisions of Sections 5 and 14 of the Limitation Act, 1963.

8. THE defendant in the aforementioned application for condonation of delay, inter alia, contended that the said defendant had sufficient cause for non-filing of the appeal in time inasmuch as the decree was passed ex parte and he was advised to file an application under Order IX, Rule 13 of the Code of Civil Procedure for recalling the ex parte decree. The defendant alleged that he, bona fide, as advised, pursued the remedies under Order IX, Rule 13 of the Code of Civil Procedure. The learned District Judge by judgment and order dated July 30, 2007 rejected the application for condonation of delay in filing the appeal, on contest, holding, inter alia, that the delay was not unintentional, but was a dilatory tactics adopted by the defendant for the purpose of delaying his eviction from the suit property.

9. BEING aggrieved this second appeal is filed by this defendant.

10. THE short question involved in this appeal is whether the