( 1 ) ALONGWITH the main S. A. O. , the appellants have filed this application (CM 39/89) under Section 5 of the Limitation Act for the condonation of delay in refiling this appeal. Even though the delay is not mentioned in number of days, but it is pointed out that it is more than II months in refiling the appeal. This application is supported by the affidavit of counsel for the appellant. The delay is sought to be explained that the file of the case was misplaced in the bundle of decided cases and came to the knowledge of the counsel only after some files were required to be discovered from those papers.

( 2 ) THE contention is that originally the appeal was filed within limitation but it was returned for removing certain objections and thereafter the file was misplaced and the appeal could not be filed within the time allowed. The further contention is that once the appeal has been filed within the limitation then the refiling of the appeal cannot be dismissed as time-barred. It can only be rejected in view of order 41 Rule 3 CPC. In support of his submission, he relied upon a Judgment reported as 1972 PLR 241, wherein under similar circumstances, the learned Ju