The main legal point established in the judgment is that the provisions of the Limitation Act, 1963 apply to appeals under the Hindu Marriage Act, and the delay in filing such appeals may be condoned if properly explained.

Heard Mr. A. C. Bhowmik, learned counsel for the appellant-petitioner and Mr. M. Kar Bhowmik, learned senior counsel, assisted by Mr. R. K. P. Singh, learned counsel for the respondent.

2. 4 (four) days delay is the subject-matter of this condonation application. Mr. A. C. Bhowmik, learned counsel for the petitioner has contended that those few days delay, not being inordinate delay in preferring this belated appeal, i.e. MAT App. No. 01 of 2003, has been exclusively and sufficiently explained in Paragraphs 3 and 4 of this petition and on consideration of those averments the delay in question may be condoned.

3. Refuting the submissions advanced on behalf of the petitioner, Mr. M. Kar Bhowmik, learned senior counsel for the respondent, has vehemently argued that in the instant case which is governed by the Hindu Marriage Act, 1955 (for short the Act), the provisions of the Limitation Act, 1963 (hereinafter referred to as the Limitation Act) do not apply. Thus the question of condonation of any delay under Section 5 of the Limitation Act does not arise. According to him, the Act, being a special legislation, does provide distinctly a period of 30 (thirty) days for filing an appeal from the date of decree or order in Section 28(4) of the Act without contemplating any provision for filing of a belated appeal. More so, in the Schedule under the Limitation Act, there is no provision providing for an appeal under the Act. In view of this statutory position, there is no scope for condonation of any delay in preferring an appeal although the delay is only for four days as in the instant case. He has also urged that when the impugned Judgment was passed on 29-11-2002, the petitioner had applied for certified copy of the said Judgment only on 10-12-2002 causing thereby a delay of 11 days; but the said delay has not also been properly explained.

4. For the sake of proper appreciation of the spirited arguments of the learned counsel for the rival parties, it would be apposite and necessary to delve upon the relevant statutory provisions of the Act as well as the Limitation Act.

(a) Section 28 of the Act provides as follows :-

"28. Appeal from decrees and orders - (1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of sub-section (3) be applicable as decrees of the Court made in the exercise of its original Civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.

(2) Orders made by the Court in any proceeding under this Act, under Section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this Section on the subject of costs only.

(4) Every appeal under this Section shall be preferred within a period of thirty days from the date of decree or order."

(b) The following provisions of the Limitation Act may also be noticed.

Section 29 of the Limitation Act envisages as under :-

"29. Savings.- (1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872. (9 of 1872).

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as and to the extent to which, they are not expressly excluded by such special or local law.

(3) Save and otherwise provided in any law for the time being in force