JUDGMENT :

1. This second appeal is directed against an order of the learned Additional District Judge, Court No. 15, Allahabad in Miscellaneous Case No. 475 of 2017, rejecting an application to condone the delay in preferring an appeal from the judgment and decree of the Additional Civil Judge (Junior Division), Court No. 12, Allahabad dated 14.08.2013 passed in O.S. No. 485 of 1989.

2. Looking to the limited issue that is involved in this appeal, an elucidation of facts giving rise to the suit or the merits of the parties' case is not required.

3. The plaintiff-appellants instituted a suit for partition of the suit property, subject matter of O.S. No. 485 of 1989, against the defendant-respondents. The Additional Civil Judge (Junior Division), Court No. 12, Allahabad tried the suit and dismissed it vide her judgment and decree dated 14.08.2013. This decree was challenged belatedly by an appeal under Section 96 C.P.C. preferred to the learned District Judge of Allahabad on 17.05.2017. The appeal was accompanied by an application under Section 5 of the Limitation Act also dated 17.05.2017, seeking the delay in preferring the appeal to be condoned. The application was duly supported by an affidavit. This delay condonation application bearing Paper No. 5-C was registered as Miscellaneous Case No. 453 of 2017 on the file of the learned District Judge, Allahabad. The belated appeal, along with the delay condonation application, was assigned to the learned Additional District Judge, Court No. 15, Allahabad, where it was numbered as Miscellaneous Case No. 475 of 2017. It is this application for condonation of delay that has come to be rejected by the order impugned, and with it, the accompanying appeal, as time barred.

4. It is said in the affidavit filed in support of the delay condonation application that upon dismissal of the appellants' suit by the Trial Court, they sought advice from their Counsel about the steps to be taken against the said decree. It is stated that the learned counsel advised them that since a second appeal was already pending before this Court relating to the same property, no appeal was required to be filed from the Trial Court's decree. It is further stated that from the judgment and decree passed in O.S. No. 128 of 1990, an appeal was carried and further, a second appeal to this Court, being Second Appeal No. 1765 of 1999, which was said to be pending. It is stated that it was in connection with briefing the learned Counsel in the second appeal that the Counsel in the High Court came across the judgment and decree dated 27.04.2017 passed by the Trial Court, that is in question here. The learned Counsel asked the appellants whether the said decree has been appealed, to which the appellants responded by disclosing that the earlier Counsel had advised them that it was not required. The appellants were thereupon advised to forthwith appeal the judgment and decree passed by the Trial Court under reference.

5. Upon receipt of the said advice, the appellants got an application made for the inspection of records through Mr. Uma Shankar Tiwari, Advocate on 28.04.2017. The inspection was made on 04.05.2017. There was in between a strike called for by the Counsel of the District Court, that led to some delay in presentation of the application for a certified copy of the judgment and decree passed by the Trial Court. The application for a certified copy was made on 09.05.2017. The appeal was presented on 17.05.2017.

6. It has been averred specifically that the delay in preferring the appeal is not deliberate, but proceeds from the wrong legal advice given by Mr. Santosh Kumar Srivastava, Advocate earlier engaged by the appellants, which they bona fide believed to be true and did not appeal earlier. It is stated that as soon as the appellants received advice on 27.04.2020 during briefing on the pending second appeal under reference by the learned Counsel appearing in the High Court, they have acted without delay to prefer t