( 1 ) THIS second appeal is directed against judgment and decree dated 4th January, 1980 of an Additional District Judge, Delhi dismising the appeal filed by Sh. Hans Raj, deceased, predecessor-in-interest of the appellants against judgment and decree dated 13th July, 1978 of a Subordinate Judge 1st class whereby the suit of the plaintiff respondent Shri Anand Parkash for possession of the premises in suit bad been decreed with costs. A notice was issued to the respondent to show cause as to why the appeal be not admitted and in response to the said notice the respondent has raised a preliminary objection to the effect that this appeal is barred by time. The facts on the basis of which the said objection is sought to be raised are as under: The appeal was originally filed by the appellants through their counsel on 1st May, 1980. On security and examination thereof the office pointed out the following defects :

(I) certified copy of the grounds of appeal filed before the lower appellate court should be duly stamped ; (ii) English translation of the affidavit in Hindi should be certified as true translation by the counsel ; and (iii) power of attorney should be signed by the appellants a3 to 5.

( 2 ) THE appeal was accordingly returned by the Deputy Registrar of this court to counsel for the appellants on 3rd May, 1980 with the direction that the same be refiled within a week. It would, however, appear that counsel for the appellants did not comply with the said direction within the prescribed period and be refiled the appeal after removing the objections as late as 4th February, 1981 i. e. after the lapse of nearly nine months. However, he recorded the following cryptic note while refiling :

"objections removed. Refiled. Delay in filing is regretted and the same has occassioned as the papers had got mixed up".

( 3 ) IN his reply to the show-cause notice, the respondent has pointed out that the appeal had not been refiled deliberately and it was only after the respondent-Decree Holder had takenout execution and sought attachment of the goods of the appellants that the latter thought it fit to refile the appeal. This, according to him, not only rendered the appeal barred by time but also amounted to an abuse of the process of the court.

( 4 ) THE appellants have not filed any reply or affidavit etc. to explain the inordinate delay in refiling the appeal. So, the only explanation available on the record is the cryptic note made by the learned counsel for the appellants which has been extracted above. Obviously the note is too vague and laconic and it does not throw any light whatsoever as to what really happened which resulted in the extra ordinary delay in refiling of the appeal. The court is simply left guessing on this aspect of the matter. No prayer for condonation of delay has even been made.

( 5 ) FINDING himself in this predicament the learned counsel for the appellants has made no endeavour to justify the delay as such. On the contrary he has canvassed with considerable vigour that the appeal was perfectly inorder when filed originally and there was no non-compliance with the relevant provisions of law. So according to him, the objections raised by the Registry were not tenable at law and as such the order of the Deputy Registrar returning the appeal to the appellants is not sustainable. In other words, the appeal having been regularly filed must be deemed to have been on the board of the court from the very inception and the question of any delay involving condonation of delay for the purpose of limitation does not arise. His contention is two fold. Firstly there is no requirement of law that the Vakalatnama should be filed alongwith the appeal much less that it should be signed by all the appellants. Since the judgment of the lower appellate court proceeds on a ground common to all the appellants, any one or more of them could appeal from the whole decree in view of Rule 4 order XLI Code of Civil Procedure (