( 1 ) WHETHER an application under Section 5 of the Limitation Act seeking condonation of delay in filing an appeal must accompany the memo of appeal? If the application is not so filed does it cease to be maintainable merely because it was filed a few days after the filing of the appeal? These are the questions of law of day to day recurrence, which arise for decision in this appeal.

( 2 ) THE order of injunction which is under appeal was passed on 24. 5. 96. On 25. 5. 96 an application for certified copy of the order was made. Copy was ready on 28. 5. 96. The last day of filing the appeal was 27. 6. 1996. The appeal was filed on 2nd July, 1996. It was not accompanied by an application seeking condonation of delay in filing the appeal. The registry raised a few objections including one of the appeal being barred by time and brought it to the notice of the appellant s counsel. The appeal was returned to the appellant s counsel for removing the defects and refiling the same within one week. The appeal, accompanied by an application under Section 5 of the Limitation Act, supported by an affidavit, was filed on 6. 7. 96. An additional affidavit in support of the application has been filed on 26. 7. 96. According to the appellant, the appeal is belated by one day only; it could have been filed on 1. 7. 96, the day on which the High Court opened while it has been actually filed on 2. 7. 96. It is prayed that the delay deserves to be condoned.

( 3 ) THE prayer for condonation of delay has been opposed tooth and nail by the plaintiff-respondent, not only on the ground that no sufficient cause for condoning the delay is made out, but also on the ground that the application was not maintainable and was liable to be dismissed in limine.

( 4 ) THE first and foremost attack made by the learned counsel for the plaintiff- respondent is based on Rule 3a of Order 41 of the Civil Procedure Code introduced by the 1976 Amendment. It provides as under :-

3a. Application for condonation of delay (1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by 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 such period. (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be. (3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule II, decide to hear the appeal.

( 5 ) IMPLICIT reliance has been placed by the learned counsel for the respondent on a Single Bench decision of this Court in R. C. Chaudhary v. Prestige Chit Co. , 1996 RLR 332 with which we will deal shortly hereinafter. R. C. Chaudhary s case refers to Nirmal Chandhary v. Bisheshwar Lal AIR 1979 Delhi 26, also a single bench decision.

( 6 ) A loose practice of admitting the appeals, leaving open the question of limitation on being raised and to be determined at the time of hearing and on the appearance of the opposite party was being followed by the Courts. The object of inserting Rule 3-A in Order 41 of the Civil Procedure Code was to put an end to such a practice which was disapproved by the Privy Council (see Statement of Objects and Reasons and Narayan Anappa Shethi v. Jayantilal Shah, AIR 1987 Guj 205.

( 7 ) THERE is a near unanimity of opinion amongst different High Courts of the country as deducible from the available decided cases holding the provisions of Rule 3-A directory and not mandatory. Merely because a time barred appeal is not accompanied by an applicatio