JUDGMENT :

The present appeal has been filed challenging an order passed by the learned District Judge, Cuttack in RFA No. 135 of 2011 rejecting the memorandum of appeal filed by appellant calling in question the judgment and decree passed by the learned trial Court in T.A. No. 201 of 1999.

2. This appeal has been admitted on the following substantial question of law :

Whether the impugned order dated 19-7-2013 rejecting the appeal memo on the point of limitation, without any deliberation as to whether the ground of delay taken by the appellants there in is excludable under Section 14 of the Limitation Act, 1963 vitiates the order refusing to condone the delay.

3. Learned counsel for the appellants submits that the trial Court has erred in law by not condoning the delay in view of the settled principle that when substantial justice and technical error are pitted against each other, the substantial justice would prevail. So, he urges for accordingly answering the substantial question of law. According to him the provision of Section 14 of Limitation Act comes to the aid of the appellant for excluding the period and that having not been discussed the order is vulnerable.

4. Learned counsel for the respondents submits that the lower appellate Court being alive to the settled position of law having not found sufficient cause preventing the appellant from filing the appeal in time has rightly refused to condone the delay of 1439 days. He further submits that the provision of Section 14 of the Limitation Act has no role to play and therefore non-deliberation on that aspect is of no significance.

5. It may be stated here that the respondent Nos. 1, 2 and 3 had filed the Title Suit No. 63 of 1981. It is stated that the appellant No. 1s husband was defendant No. 1 there and on his death the present appellant No. 1 was substituted, but due to the disturbed mind of appellant No. 1, she could not take any step and remained absent for which she was set ex-parte. The suit was decreed, in terms of compromise in respect of other defendants and ex-parte against the present appellant No. 1. The appellant No. 2 on his attaining majority filed a petition under Order 9, Rule 13 of the Code of Civil Procedure to set aside the said judgment and decree passed in T.S. No. 201 of 1989 ex-parte and it was numbered as Misc. Case No. 22 of 2003. The said Misc. Case was dismissed on 19-9-2011 as the appellant No. 2 was not a party in the original suit. However, instead of waiting for the result of Misc. Case No. 22 of 2003, the appeal was present before the lower appellate Court on 25-8-2011. The delay is now said to be on account of pendency of the Misc. Case No. 22 of 2003 in the Court of Civil Judge (Jr. Division) 1st Court, Cuttack. For the pendency of the said proceeding and the period spent therein, the appellants claim to have been prevented by sufficient cause to file the appeal in the Court at District Judge, Cuttack in time.

6. Section 14 of the Limitation Act excludes the time of proceeding bona fide in the Court without jurisdiction. In the case in hand, the appellant has come up with the case that the time spent in the proceeding at the instance of appellant No. 2 in Misc. Case No. 22 of 2003 under Order 9, Rule 13 of the Code is to be excluded and that be treated as sufficient cause for having been prevented from not filing the appeal in time. Law has also been well settled that in order to get the benefit of exclusion the proceeding being pursued must be a proceeding bona fide and it must be in a Court having no jurisdiction. The conditions required to be satisfied are:

(i) both the proceeding must be civil proceeding prosecuted by the same party.

(ii) the prior proceeding had been presented with due diligence and good faith;

(iii) the failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;

(iv) earlier and later proceeding must relate to the same cause of like nature; and

(v) both proceedings are in a Court.

7. A