ORAL ORDER

1. The present application is to condone the delay of 2210 days occurred in filing the second appeal against the judgment and decree dated 15.04.2013 rendered by the learned 6th Additional District Judge (Ad-hoc), Gandhidham, Kachchh in Regular Civil Appeal No.26 of 2005 (old First Appeal No.1099 of

2003).

2. It is the case of the applicants that the respondent filed Special Civil Suit No.126 of 1987 (new number Special Civil Suit No.371 of 1995) before the Court of learned Civil Judge (Senior Division) at Bhuj, which came to be dismissed by the Civil Court on 30.08.2022, after hearing the both the parties. Thereafter, respondent filed First Appeal No.1099 of 2003 before this Court and since pecuniary jurisdiction was changed, the First appeal transferred to the District Court, Bhuj which was given new number as Regular Civil Appeal No.26 of 2005 and the same was allowed. It is the say of the applicants that in the said appeal, no notice or summons was served upon them and the same came to be decided ex-parte and the applicants were not aware about the said order. Against the judgment and decree passed in Regular Civil Appeal No.26 of 2005, the applicants have preferred an application for rehearing the appeal, in which, there was no delay on the part of the applicants.

2.1 It is further the say of the applicants that from 2013 to 2019, the application was pending before the concerned Court and during the said period, Special Civil Application No.14119 of 2018 came to be filed before this Court, whereby this Court directed the concerned Court to decide the matter afresh. The Civil Misc. Application No.50 of 2013 came to be dismissed vide order dated 10.04.2019. Against this order, Appeal from Order No.161 of 2019 preferred. On 20.06.2019, this Court passed the following order.

“Order in Appeal From Order :

Present Appeal from Order is submitted for the purpose of challenging the legality and validity of an order dated 10.04.2019 passed in Civil Misc. Application No. 50 of 2013. After arguing sometime, the learned advocate appearing for appellants, under instructions, seeks permission to withdraw the present Appeal from Order with a view to file substantive proceeding against alleged exparte order, which has been passed.

In that view of the matter without entering into the merits of the matter, permission to withdraw the Appeal from Order is granted.

It is needless to say that while submitting such substantive proceeding, the limitation period will be examined in light of the fact that under Order – 41 Rule – 21 of the Civil Procedure Code, an application is submitted and sometime has been taken in deciding the same. With the above observations, the present Appeal from Order stands disposed of as withdrawn.

Order in Civil Application :

In view of the order passed in Appeal from Order, present civil application does not survive and accordingly, the same stands disposed of.”

2.2 It is further the say of the applicants that thereafter, they have instructed the learned counsel for preparing the second appeal along with the application for condonation of delay in view of the fact that the civil misc. application under Order 41 Rule 21 of the CPC was pending before the concerned Court seeking rehearing of Regular Civil Appeal No.26 of 2005.

3. Heard learned counsel appearing for the respective parties. 4. Considering the facts that after the order passed by the first Appellate Court, the present applicants have immediately preferred appropriate proceedings before the different courts and challenged the the order before the concerned court and, thereafter, before this Court. Considering the facts and circumstances of the case and considering the decision in the case of Post Master General Vs. Living Media India Limited reported in (2012) 3 SCC 563 and fact that the applicants have sufÏciently explained the cause of delay in preferring the second appeal. Hence, the application is allowed. The delay caused in preferring the second appe