Court cannot order for specific performance of contract.

Srinivasan, J.

This petition for condonation of delay of 135 days in filing the appeal is posted before us on our direction given yesterday when C.M.P.No. 12907 of 1995 for fixing a date for hearing the O.S. Appeal was posted before us. We were informed that this petition was pending. We find now that in the petition for condonation of delay, while ordering notice, the Division Bench directed that petition to be posted along with the appeal for hearing. Thus, the registry numbered the appeal. When the petition was posted again after some time, the Bench passed the following order:-

“Wrongly posted. Post long with the appeal.”

2. Obviously, the Bench was under the impression that a petition to condone the delay could be disposed of long with the main appeal. In our opinion, the said view is erroneous. It is settled law that unless the delay in filing the appeal is condoned, the same cannot be taken on file. Section 3 of the Limitation Act provides that every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. The language of the Section is mandatory. Hence, the Court has a duty to consider whether the delay in preferring the appeal can be condoned under Section 5 of the Limitation Act. Only if the delay is condoned, the appeal could be entertained by the Court.

3. In Krishnasami Panikondar v. S.R.M.A.R. Ramasami Chetty and others (34 MLJ 63), the Privy Council held that the question of limitation should not be left open till the hearing of the appeal, although it was till then the usage in India. The Privy Council categorically ruled that the Courts in this Country should adopt a procedure which will secure at the stage of admission the final determination of any question of limitation affecting the competence of an appeal. It is pointed out that the admission of an appeal after the period of limitation deprives the respondent of a valuable right, for it puts in peril the finality of the decision in his favour and where such an order is made ex parte , it is open to reconsideration at the respondent’s instance.

4. This position in law as laid down by the Privy Council is now recognised statutorily under Order XLI, Rule 3A of the Code of Civil Procedure, introduced by the Amendment Act 104 of 1976. Under that provision, if 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. Clause (2) provides that 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. Hence also, the language is mandatory. Thus, it is the duty of the court to decide the question of condonation of delay before the appeal is taken on file. It following, therefore, that the order passed by the Bench on 26. 1993 directing this petition to be posted for hearing along with the appeal as well as the order passed on 7. 1993 that the petition was wrongly posted and directing it to be posted along with the appeal are per incurim . Those two orders are not valid in the eye of law. Hence, we have taken up this petition for condonation of delay for hearing before the appeal is posted for hearing.

5. We are not satisfied with the reasons given in the affidavit filed in support of the application for condonation of delay of 135 days. The averments are vague. Admittedly the copies of the judgment and decree were received on 29. 1992. Though the petition is in the United States of America and she was made aware that the copies were ready, admittedly she did not take a de