Applications for condoning delay in filings can be subsequent to the memo of appeal, ensuring access to justice without strict penalization for procedural lapses.

JUDGMENT :

MANISH KUMAR NIGAM, J.

1. Heard learned counsel for the petitioner and perused the record.

2. This petition has been filed challenging the order dated 26.08.2025 passed by Additional District Judge/Special Judge, Court No. 4, Varanasi in Misc. Case No. 51 of 2025. By the order dated 26.08.2025, the appellate court has allowed the application filed by the appellant for condoning the delay in filing the appeal.

3. Contention of the learned counsel for the petitioner is that the respondent has not filed the application for condoning the delay along with memo of appeal and therefore, in view of the provisions of Order 41 Rule 3-A C.P.C., the appeal filed by the respondent is to be dismissed. It has also been contended by learned counsel for the petitioner that in case, an appeal is filed with delay, the same shall be accompanied by an application for condoning the delay in view of the provisions of Order 41 Rule 3-A C.P.C. It has been further contended that subsequent to the filing of the appeal, an application cannot be filed for condoning the delay, it has to be filed simultaneously along with memo of appeal. In this regard, learned counsel for the petitioner has relied upon the judgment of this Court in case of Collector, Varanasi v. Rai Prem Chand and others , AIR 1992 All 206 as well as judgment of Kerala High Court in case of Padmavathi v. Kalu , AIR 1980 Kerala 173 .

4. Before considering the submission, it will be appropriate to look into the brief facts of the case which are as under.

5. An ex-parte decree was passed on 17.08.2002 in a suit being O.S. No. 51 of 2001 ( Dr. Sammohit v. Radheyshyam ) for specific performance of an agreement to sell executed by father of the respondent. The said decree was executed by filing an execution application which was registered as execution case No. 32 of 2002. In the execution proceedings, sale deed was executed by the court on 15.07.2003. A restoration application was filed by the defendant/respondent under Order 9 Rule 13 C.P.C. on 13.10.2021 along with an application under Section 5 of LIMITATION ACT for condoning the delay in filing the restoration application. The application filed under Section 5 of the LIMITATION ACT for condoning the delay in filing the restoration application was rejected by the trial court by order dated 05.03.2024. Against the order dated 05.03.2024, the petitioner filed a revision on 12.03.2024. On objection being raised by the petitioner, the respondent moved an application for converting the revision into a misc. appeal and the said application was allowed by order dated 09.08.2024. After conversion of the revision into appeal, on an objection filed by the petitioner, the respondent filed fresh memo of appeal on 28.08.2024. Thereafter, on an objection being taken by the petitioner that appeal filed by the respondent was beyond time, the respondent filed an application under Section 5 of the LIMITATION ACT for condoning the delay in filing the appeal on 23.09.2024. The said application has been allowed by the court below by the order impugned, hence the present writ petition.

6. It would also be appropriate to look into the relevant provisions before considering the argument of the learned counsel for the petitioner.

7. Order 41 Rule 3-A of C.P.C. is quoted as under:

"3A. Application for condonation of delay:

(1) When a 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.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice hereof 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.

(3) Where an application has been made under