The main legal point established in the judgment is that the time spent in pursuing a review petition can be considered as 'sufficient cause' for condoning the delay in filing an appeal, provided it was pursued honestly and without dilatory tactics.

JUDGMENT :

Mir Alfaz Ali, J.

1. Heard Mr. A.D. Choudhury, learned counsel assisted by Mr. D. Choudhury, learned counsel for the applicant/petitioner and Mr. A. Iqbal, learned counsel for the respondent No. 1.

2. The petitioner herein, has filed a second appeal against the judgment and order passed in Misc. Appeal No. 18/2014 (corresponding to old Misc. Appeal No. 20/2012). As the said second appeal was filed beyond the period of limitation, the present application under Section 5 of the Limitation Act has been filed praying for condonation of delay of 1293 days.

3. Explaining the delay, the petitioner stated in the petition that the respondent herein, as plaintiff filed a suit (Title Suit No. 272/2003) for specific performance of contract, which was decreed on 30.11.2004 and an execution proceeding being Title Execution Case No. 23/2005 was instituted for execution of the said decree. When the Nazir of the Court visited the suit land on 15.06.2007 in connection with the execution of the decree, the present petitioner came to know about the decree, wherein, the petitioner was not a party. However, the land in possession of the petitioner was included in the suit property. Therefore, the present petitioner filed an application under Order 21 Rule 97 read with Rule 99 CPC which was rejected by the learned trial court.

4. The impugned order was carried forward to appeal, which also stood dismissed. After disposal of the Misc. Appeal No. 18/2014, the petitioner preferred a review petition, which was also dismissed on 24.07.2018. Thereafter, a second appeal has been preferred along with this petition for condonation of delay.

5. Learned counsel for the petitioner submits, that though, the delay was inordinate for a period of 1293 days, such delay was caused basically in pursuing the review petition. Learned counsel Mr. AD Choudhury contends, that the period spent for pursuing the review petition shall be excluded in calculating the period of limitation. This contention of the learned counsel for the petitioner has been countered by the learned counsel for the respondent Mr. A Iqbal, stating that the review and the appeal being concurrent and simultaneous remedy and not being consecutive one, the petitioner is not entitled to exclusion of time taken in pursuing the review petition, meaning thereby, the time consumed by the review petitioner shall not be added to the statutory period of limitation. In order to buttress his submission, learned counsel has placed reliance on a decision (Punjab & Haryana High Court) in Mahabir vs. Bhawani and Another, AIR 2009 (NOC) 1314 (P&H), wherein, the Hon'ble Punjab and Haryana High Court held that delay in prosecuting a review petition in Court having jurisdiction and the said review petition being dismissed, not on technical ground, but on merit, the time taken in prosecuting the review petition cannot be excluded while considering the period of limitation. Mr. Iqbal further submits that besides the time taken in pursuing the review petition there was a further delay of 129 days after the disposal of review petition, which has not been satisfactorily explained.

6. Mr. A.D. Choudhury placing reliance on Bhivchanda Shankar More vs. Balu Gangaram More decided on 7th May, 2019 in Civil Appeal No. 4669 of 2019 as well as the decision of Privy Council in Brij Inder Singh vs. Kanshi Ram, (1917) AIR PC 156 contends, that the period taken in pursuing the review petition has to be excluded, as a general rule, unless, it is found that the review petition was pursued by the petitioner without any bona-fide and only as a dilatory tactics.

7. The Hon'ble Privy Council in Brij Inder Singh (supra) approved the principle as a general rule that "if a party presents an application for review of a judgment within the ordinary period limited for appealing, the time occupied by the Court in disposing of such application will not be reckoned among the days limited for appealing, but will be added thereto, and a memorandum of a