Rajnarainsingh Avadhraj Singh, Vs. Smt. Vidyadevi Widow of Ramraj Singh Kalu Singh, - Court Judgment

Excerpt:
limitation - condonation of delay - sections 5, 12, 12 (2) and 14 of limitation act, 1963 and section 151, order 17 and order 41 rules 1 and 17 of code of civil procedure, 1908 - certified copy of decree was not filed along with appeal against judgment - where application for certified copy of judgment and decree is filed beyond period of limitation prescribed for filing of appeal party cannot avail benefit of exclusion of period under section 12 - there was no justification for non filing of application for obtaining certified copy of decree - petitioner did not bother to file any application for condonation of delay - extension of time to enable petitioner to place on record certified copy of decree does not amount to condonation of delay in filing appeal - petitioners failed to.....orderr.m.s. khandeparkar, j.heard the advocates for the parties. perusedthe record.1. in the facts and circumstances of the caseboth the applications being required to be heardtogether, were heard accordingly and are beingdisposed of by this common order.2. rule. by consent, the rule made returnableforthwith.3. civil application no. 4437 of 2002 is forcondonation of delay in filing civil applicationno. 1932 of 2002 and later application i.e. civilapplication no. 1932 of 2002 is for restoration offirst appeal no. 891 of 1995, which was dismissed on6th october, 2001 as well as for condonation ofdelay in filing the certified copy of the decree inthe said appeal. civil application no. 4437 of 2002is hereinafter referred to as the application forcondonation of delay and the civil.....

Judgment:
ORDER

R.M.S. Khandeparkar, J.

Heard the Advocates for the parties. Perusedthe record.

1. In the facts and circumstances of the caseboth the applications being required to be heardtogether, were heard accordingly and are beingdisposed of by this common order.

2. Rule. By consent, the rule made returnableforthwith.

3. Civil Application No. 4437 of 2002 is forcondonation of delay in filing Civil ApplicationNo. 1932 of 2002 and later application i.e. CivilApplication No. 1932 of 2002 is for restoration ofFirst Appeal No. 891 of 1995, which was dismissed on6th October, 2001 as well as for condonation ofdelay in filing the certified copy of the decree inthe said Appeal. Civil Application No. 4437 of 2002is hereinafter referred to as the application forcondonation of delay and the Civil ApplicationNo. 1932 of 2002 is hereinafter referred to as theapplication for restoration.

4. In the proceedings in application for condonationof delay it is the case of the Petitionersthat after the dismissal of the Appeal on 6thOctober, 2001 the appellants preferred LettersPatent Appeal No. 60 of 2001 which was disposed of on11.3.2002 and thereafter the application forrestoration was filed on 1.4.2002 and therefore,there was sufficient cause for condonation of delayin filing the application for restoration.

5. As far as proceedings in the application forrestoration is concerned, it is the case of thePetitioners that after the extension of period bythree months for enabling the Petitioners to placeon record certified copy of the decree by the orderpassed by this Court on 24.1.2001, the certifiedcopy of the decree was actually filed in this courton 23.3.2001. However, by order dated 22.6.2001 asnone appeared on behalf of the Petitioners in thesaid Appeal and no steps were taken to explain thedelay in filing the certified copy of the decreeand the office objections in that regard were notremoved, it was ordered that the matter be placedbefore the Court on 18.7.2001. Thereafter, whenthe First Appeal came up for final hearing on6.9.2001 the same was ordered to be dismissed onthe ground that inspite of giving sufficient time,no steps were taken to file an application forcondonation of delay and therefore, the Appeal wasordered to be barred by limitation and dismissed.The Petitioners preferred Letters Patent Appealwhich was came up for hearing on 11.3.2002 and thePetitioners withdrew the same stating that theywould file application before the learned SingleJudge for condonation of delay in filing the certifiedcopy and for restoration of the Appeal andthat the Petitioners therefore, have filed the saidapplication. It is further their case that afterthe delivery of Judgment by the trial court on31.7.1995 the certified copy of the order wasapplied on 14.9.1995 and the Appeal was filedwithout waiting for certified copy of the decree.It is their further contention in the applicationthat the Appeal has already been admitted and thePetitioners having given sufficient time to producethe certified copy, they did not make any applicationfor condonation of delay and that the Appealhaving once admitted, the same could not have beendismissed without fully hearing of the appeal andafter giving reasons for dismissal of the appeal.

6. The learned Advocate appearing for the Petitionershas submitted that after the disposal ofthe Suit by the trial court by its Judgment on31.7.1995 an application for certified copy of theJudgment was filed on 14.9.1995 on a printed form.However, while applying certified copy of theJudgment, the Advocate for the Petitioners did notask for the certified copy of the decree and theapplication was filed only in relation to thecertified copy of the Judgment and order and thisfact was not known to the Petitioners. It was onlyafter the objections were raised, the Petitionerswith the help of another Advocate took out a searchof the reports and then realised that the applicationdated 14.9.1995 was in relation to certifiedcopy of the Judgment and order and it did notinclude certified copy of the decree and therefore,filed a fresh application on 8.1.2001 and thecertified copy of the decree was made available tothe Petitioner on 22.3.2001 and it was filed inthe Court immediately on the text day i.e. on23.3.2001. There was a bonafide mistake on thepart of the Petitioners in not filing the certifiedcopy of the decree alongwith the Appeal and it wasentirely on account of the fault of the earlierAdvocate who appeared for the Petitioners who hadby mistake restricted the application to the certifiedcopy of the Judgment and order and no askedfor certified copy of the Decree while filing theapplication on 14.9.1995. Further considering thefact that Appeal was already admitted the time wasgranted to file certified copy of the decree, thePetitioners bonafide believed that application forcondonation of delay was not required to be filed.Accordingly, learned Advocate for the Petitionerssubmitted that in the facts and circumstances ofthe case, this is a fit case for invokingdiscretionary power under Section 5 of theLimitation Act 1963 and therefore, delay in placingon record certified copy of the decree as well asdelay in filing application for restoration shouldbe condoned. It is further submitted thatapplication for restoration was filed within twoweeks after withdrawal of the Letters Patent Appealand it shows bonafide on the part of thePetitioners and their interest in pursuing with thematter.

7. The learned Advocate for the Respondents onthe other hand, has submitted that there has beeninordinate and unexplained delay of more than 4 and1/2 years in placing on record the certified copyof the decree and the application for restorationdoes not disclose any justification for condonationof delay. According to the learned Advocate forthe Respondents, question of condonation of delaydoes not arise at all i view of the fact that theprovisions of Section 5 of Limitation Act are notat all attracted in the case in hand. According tothe learned Advocate for the respondents questionof extension of period under Section 5 can ariseonly in a case where the party files applicationfor certified copy of the Judgment and decree withinthe period of limitation but is prevented to filethe Appeal within the period of limitation forjustifiable reason to be explained by such partybut not incase of failure on the part of the partyto take any step in the period of limitation tofile the Appeal against the Judgment pronounced bythe trial court. In that regard, failure to applyfor certified copy of the Judgment and decreewithin the period of limitation is to be construedas failure on the part of the appellant to take anystep for filing of the appeal within the period oflimitation and therefore, in such cases, questionof extension of period of limitation under Section5 can not arise. Considering the fact that noapplication for certified copy of the decree wasfiled till 8.1.2001, the records disclose that thePetitioners had not taken any step to file theappeal within the period of limitation and hence,question of extension of period of limitation doesnot arise. It was also sought to be contended thatquestion of exclusion of period in limitation doesnot arise. It was also sought to be contended thatquestion of exclusion of period in terms ofprovision of law contained in Section 12, also doesnot arise in the case in hand as the exclusion ofperiod can arise only in cases where the certifiedcopy is asked for within the period of limitationand not otherwise and that has been clarified inthe explanation clause to Section 12 itself.Reliance is sought to be placed in the decision ofthe Apex Court in the matter of Udayan Chinubhaiv. R.C. Bali reported in AIR 1977 SC 2319 and ofthe Division Bench of this Court in J.K. Kapur v.Vachha & Co. reported in : AIR1979Bom33 .

8. Before considering the rival contentions inthe matter, it is necessary to take note of certainundisputed facts revealed from the records. On31.7.1995 the trial court decreed the suit beingSCC No. 6545 of 1982 filed by the Respondents fordeclaration and injunction restraining thePetitioners from entering the disturbing thepossession of the respondent/plaintiff in relationto the suit stall which is a pan shop. On 14.9.1995the Petitioners applied for certified copy of theJudgment and order of the trial court. On 5.10.1995the Petitioners filed appeal against the Judgmentof the trial court. On 6.10.1995 the matter wasmentioned before the Court thereupon it wasdirected to be placed for hearing on admission on30.10.1995, while granting interim relief in thenature of stay of the operative portion of theimpugned decree. Matter thereafter was placed forhearing on admission on 15.11.1995 on which datethe appeal was admission on 15.11.1995 on which datethe appeal was admitted. However, the same wasplaced before the court on 13.12.1996 on account offailure on the part of the Petitioners to remove theoffice objections and there upon four weeks timewas granted to the petitioners to do the needful inthe matter. Again the matter was placed before theCourt on 24.2.1997 and six weeks time was grantedto the petitioners to file the certified copy ofthe decree. Matter again appeared before theCourt on 12.12.2000 and it was noted that eventhough by order dated 24.2.1997 six weeks time wasgranted to the Petitioners to file certified copyof the decree, the same was not filed till then andtherefore, it was observed that if certified copyof the decree was not to be filed within four weeksfrom that day, the First Appeal would standdismissed without reference to the Court and if thesame was to be filed within the specified time, theFirst Appeal was ordered to be placed foradmission. Civil Application No. 315 of 2001 wastaken out by the Petitioners and it was placedbefore the Court on 19.1.2001 whereupon time wasgranted till 23.1.2001 for removal of all theoffice objections. On account of failure to removeoffice objections, the same was again placed beforethe Court on 24.1.2001. On that day, the Courtordered that the time granted by the Court forfiling certified copy vide order dated 12.12.2000was further extended for a period of three months.The Petitioners filed a certified copy of the decreeof the trial court on 23.3.2001. Matter wasthereafter placed before the Court on 22.6.2001.However, none appeared on behalf of the Petitionersor the Respondents and the Court passed thefollowing order:-

'None present. In the event no steps will betaken to explain the delay and if the officeobjections will not be removed the mattershould be put up before the court order on18.7.2001.'

As nothing was done by the Petitioners to complywith the said order, the matter was placed beforethe Court on 6.9.2001 and the learned Single Judgepassed the following order:-

'inspire of grant of sufficient time andadditional time by order dated 22.6.2001, nosteps were taken by the Appellant to move anapplication for condonation of delay. Consequently,there is no alternative but todismiss the appeal being barred bylimitation.'

It is also to be noted that during the pendency ofthe proceedings some other applications were alsofiled and they were disposed of after hearing theparties. However, reference to them in detail isnot necessary for the purpose of decision in theapplications under consideration.

9. The materials on record therefore, undisputedlydisclose that the certified copy of the decreewas not filed alongwith the appeal against theJudgment of the trial court. The provisions of lawcontained in Order 41 Rule 1 of CPC as well as therelevant provisions of the Appellate Side Rules ofthis High Court clearly warranted at the relevanttime filing of the certified copy of the decreealongwith the appeal. Undoubtedly, in case of anydifficulty in procuring certified copy of thedecree, the parties were permitted to move forextension of period for filing such certified copyof decree and undoubtedly it is a practise of thecourt to grant such time in deserving cases.Incase of failure to submit such certified copy,the office is required to raise objection in thatregard and to bring the said objection to thenotice of the parties. Records apparently disclosethat the office had raised necessary objection fornot filing of the certified copy of the decree andit was made known to the Petitioners and thepetitioner was granted time to place on recordcertified copy of the decree and infact the courthad passed the order in that regard on 12.12.2002clearly specifying that if the certified copy isnot filed within four weeks from that day, theappeal would stand dismissed without reference tothat court and incase the same was to be filed, theappeal was to be placed for admission immediately.This period was further extended by three months byorder dated 24.1.2001.

10. Above undisputed facts undoubtedly disclosethat time to place on record the certified copy ofthe decree was extended by the court till24.4.2001. Simultaneously it also discloses thatthe Court had specifically directed the matter tobe placed for admission immediately on filing ofthe certified copy of the decree on record. Inother words, though initially by order dated15.11.1995 the appeal was stated to have beenadmitted, taking note of the fact that the appealcannot be admitted in the absence of certified copyof the decree, the order dated 15.11.1995 directingthe admission of the appeal was modified and it washeld that the matter was required to be heardafresh for admission in view of delay in placing onrecord certified copy of the decree. This is clearfrom the order dated 12.12.2000. It is nobody'scase that while passing the order dated 12.12.2000the earlier order dated 15.11.1995 was not broughtto the notice of this court or that the order dated12.12.2000 was passed in ignorance of the orderdated 15.11.1995. Infact the order dated12.12.2000 was passed in the appeal itself andbeing fully aware of the order dated 15.11.1995 andit was stated that the matter was to be placed forhearing on admission after placing on recordcertified copy of the decree.

11. From the above disclosed facts, it is apparentthat even though the time for placing on recordcertified copy was extended by order dated24.1.2001, the issued as to the entitlement of thePetitioners to be heard in the appeal against thedecree of the trial court was kept open and beingso and having filed certified copy beyond theperiod of limitation, it was necessary for thePetitioners to explain the delay in filing thecertified copy of the decree as on account of delayin filing certified copy which is an essentialaccompaniment of the Memorandum of Appeal to construethat the appeal to have been filed within aperiod of limitation, it was necessary of thePetitioners to justify the delay in filing theappeal which had resulted on account of delay onplacing on record certified copy of the decree.

12. At this stage, it is necessary to considerthe contention sought to be raised on behalf of theRespondents in relation to the provisions ofSection 5 and 12 of the Limitation Act 1963 and thedecisions sought to be relied upon in that regard.

13. The explanation clause to Section 12 providesthat in computing the period of limitation, thetime requisite for obtaining a certified copy of adecree of an order which is required to be excludedin terms of the provisions of the said section, anytime taken by the court to prepare the decree ororder before an application for a copy thereof ismade shall not be excluded. According to thelearned Advocate, question of exclusion of timespent for preparation of the decree would ariseonly in cases where the party takes the necessarysteps for preparation of the decree within theperiod of limitation and not otherwise. In otherwords, if the period of limitation prescribed forfiling of appeal is 30 days from the date ofpronouncement of the Judgment, and the party filesan application for certified copy of the decreewithin such 30 days, then the period spent inpreparation of such decree can be excluded whilecomputing period of limitation but if steps forobtaining certified copy are taken after the expiryof limitation, question of exclusion of periodspent for obtaining the certified copy of the decreedoes not arise at all.

14. The Apex Court in Udayan Chuimanbhai's casehas held that:-

'Computation of limitation is predominantlythe governing factor in Section 12. In order toachieve an easy computation of period oflimitation without hardship to litigants andto avoid vicissitudes of time consuminglitigious exercises which the old section hadbeen subjected to the Explanation has beenintroduced. In order to enable correctcomputation of the period of Limitation underSection 12(2) with certitude when it is providedtherein, that certain time has to beexcluded, it is then clearly provided, at thesame time, in the Explanation that aparticular period of time shall not beexcluded. The words 'under this section in theexplanation are consequent relating as wasdone to the governing to the section viz.computation of period of limitation, one forcomputation period of limitation 12(2) andother for computation of time requiring inobtaining copy of the decree under theexplanation from computation of limitation.The explanation cannot be read in isolation.The position may be different if a decree inlaw cannot be prepared because of noncompliance with some directions in thatJudgment, the explanation does a compositeservice positive as well as negative.Positively it prescribes the mode of correctcomputation. By a process of exclusion andnot explained the time before making anapplication for copy. The explanation does notwarrant exclusion of certain period positivelyexcluded by him for the purpose of computingthe period of limitation by 'excluding'included period for the benefit of a personprior to making application, must berespected.'

15. The division Bench of this court in JaddishKrishn Kapoor's case has held thus:-

'The entire time taken by the party in makingan application for copies from the date of thepronouncement of the Judgment is not to be ex-cludedeven if that is an over lapping periodwhich is also taken by the court in drawing upthe decree. We have therefore nodoubt that thelegal position from the 1st of January 1964clearly is that a party must apply for a copyof the Judgment and decree within the periodof limitation prescribed for the appeal and ifhe does not do so but waits beyond theprescribed period of the limitation on thespecious excuse that the court is stilldrawing up the decree, his application beingbeyond limitation, the appeal that will befiled subsequently can never be in time.'

16. Considering the law laid down by the ApexCourt and the Division Bench of this Court, it istherefore, clear that question of giving benefit ofexclusion of a period required for obtainingcertified copy of the Judgment and decree whilefiling the appeal can arise only in cases where theparty applies for certified copy of the Judgmentand decree within the period of limitation and nototherwise. A party sleeping over his right for theentire period of limitation and thereafter askingfor the certified copy of the Judgment and decreecannot claim benefit of exclusion of the saidperiod while computing period of limitation whichhe would have otherwise been entitled to underSection 12, had he filed application for certifiedcopy within the period of limitation. LearnedAdvocate for the Respondents is therefore justifiedin contending that in case where application forcertified copy of the Judgment and decree is filedbeyond the period of limitation prescribed forfiling of the appeal the party cannot avail thebenefit of exclusion of period under Section 12 ofthe Limitation Act.

17. As regards the provisions contained in Section5 of the Limitation Act, the said section speaks ofextension of prescribed period in certain cases.It provides that any appeal may be admitted afterthe prescribed period if the appellant satisfiesthe court that he had sufficient cause for notpreferring the appeal within such period. Theexplanation clause thereto provides that the factthat the appellant was misled by any order,practice or Judgment of the High Court inascertaining or computing the prescribed period maybe sufficient cause within the meaning of the saidsection. It is the contention of the learnedAdvocate for the Respondent that question ofinvoking the powers under Section 5 cannot ariseunless the party filing the appeal discloses stepson the part of such party having been taken for thepurpose of filing the appeal within the period oflimitation and such fact would include filing ofan application for obtaining certified copy of theJudgment and decree, and therefore, incase theparty fails to disclose any such acts on his or herpart, then such a party is not entitled to claimany benefit under Section 5 of the Limitation Act.

18. I am afraid the arguments in this regard ifaccepted would virtually defeat the very purpose ofthe provisions contained in Section 5. The Courtsare fully empowered to extend the period oflimitation in a case where the appellant disclosessufficient cause for not preferring the appealwithin the prescribed period. In other words,sufficient cause for inaction on the part of theappellant within the prescribed period in relationto the filing of the appeal would justify admissionof the appeal by invoking powers under Section 5 ofthe Limitation Act. The inaction on the part ofthe appellant within the prescribed period inrelation to the 'preferring the appeal' wouldcertainly include an act necessary for the purposeof 'preferring the appeal' within the meaning ofthe said expression under Section 5 of the Act.The law is very clear as regards the procedure tobe followed for the purpose of filing of theappeal. The appeal cannot be filed without thecertified copy of the Judgment and decree.Undoubtedly, in view of the amendment to the provisionsof Order 41 Rule 1 w.e.f. 1.7.2002 the requirementof accompaniment of the certified copy ofthe decree at the time of presentation ofMemorandum of Appeal though excluded, the necessityof the certified copy of the decree for disposingthe appeal cannot be ruled out as various otherfactors like valuation of the Appeal, the courtfee payable thereon would depend upon the bill ofcost prepared by the Registry on disposal of thesuit on the basis of the valuation and the courtfee paid in the suit. Being so the necessity ofthe certified copy of the Judgment as well as ofthe decree for entertaining and disposal of theappeal cannot be considered as mere formality buthas to be considered as mandatory requirement.Being so any step in the direction of collectingthe legally required material necessary for thepurpose of preferring the appeal would amount totaking steps for preferring the appeal within themeaning of the said expression under Section 5 ofthe said Act. Being so, 'sufficient cause for notpreferring' would also include sufficient cause fornot preferring the application for certified copyof the decree within the period of limitation.

19. Even otherwise, thee can be cases where aparty may be totally unaware of the pronouncementof Judgment for a period more than one prescribedfor preferring the appeal and on having learnt ofsuch Judgment after the expiry of such perioddesires to file the appeal, is such person to beconsidered to be totally debarred from preferringthe appeal? Any such interpretation wouldvirtually defeat the very purpose of Section 5 ofthe Limitation Act. It is well settled thatcondonation of delay is not the same thing likeexclusion of time under Section 12 or 14 of theAct. It is rather extension of time which is amatter of concession or indulgence to the applicantwhich can not be claimed as a matter of absoluteright; however, Section 5 has to receive a legalconstruction so as to advance substantial justicewhen no negligence or want of bonafide isimputable to the applicant. Therefore, contentionssought to be raised on behalf of the respondent inthis regard are to be rejected.

20. Reverting to the facts of the case, it is notin dispute that no application for certified copyof decree was filed till 1.1.2001. The suit wasdecreed on 31.7.1995. The application for restoration,as pointed out earlier, discloses any twogrounds in support of the claim for condonation ofdelay viz. firstly that the time to produce thecertified copy was extended from time to time andlast occasion was on 24.1.2001 and secondly, thatthe appeal having been admitted it could not havebeen dismissed. Apparently, there is nojustification for non filing of the application forobtaining the certified copy of the decree till7.1.2001. It is pertinent to note that apart fromthe objection being raised by the office inrelation to non production of the certified copy ofthe decree on record, the specific orders werepassed regarding non compliance of the saidrequirement of and the order dated 24.2.1997 clearlyspeaks of statement by the Counsel of thePetitioners that the certified copy would beplaced on record within six weeks therefrom.Evidently, it was within the knowledge of thepetitioners that the certified copy of the decreewas required to be placed on record, apart from thefact that for the purpose of the maintainabilityof the appeal, such certified copy was required tobe placed on record. inspire of the knowledge tothe petitioner about the certified copy beingrequired to be placed on record, there isabsolutely no explanation as to what prevented thepetitioners from obtaining certified copy fromFebruary-1997 till January-2001. The argumentsadvanced in the course of the hearing of the matterblaming the earlier Advocate on record for failureto ask for certified copy of the decree inapplication dated 14.9.1995 without disclosingany cause for failure on the part of thepetitioners to obtain certified copy from February-1997onwards inspite of the full knowledge aboutthe requirements thereof and attempt to blame theearlier Advocate of the petitioners in that regardclearly reveal lack of bonafide on the part of thepetitioners.

21. Contention that the petitioners were grantedtime to produce the certified copy of the decreewould itself disclose sufficient cause forcondonation of delay is devoid of substance. Asalready observed above, by order dated 12.12.2000it was made specifically clear that on account offailure on the part of the petitioners to filecertified copy of the decree alongwith the appealand the same was sought to be placed on record longafter the expiry of the period of limitation, thepetitioners had to justify the delay for thepurpose of admission of the appeal. Thepetitioners did not bother to file any applicationfor condonation of delay. The hesitation on thepart of the petitioners to seek condonation ofdelay cannot be said to be unintentional as recordsreveal that inspite of necessary warning given tothe petitioners by order dated 22.6.2001 that onaccount of failure to take appropriate steps toexplain the delay and unless office objection inthat regard is removed, the matter would be placedfor consequential order on 18.7.2001, the petitionersknowing well the consequences of their failureto take appropriate steps did not bother to moveany application for condonation of delay and consequentlyappeal was dismissed on 6.9.2001. Eventhereafter attempt was made to challenge that orderwithout explaining the delay by filing LettersPatent Appeal and only when the Letters PatentAppeal came up for hearing it was withdrawn on thebasis that the petitioners would file necessaryapplication for condonation of delay.

22. Even after submitting before the DivisionBench that the Petitioners would file necessaryapplication for condonation of delay, the petitionersdid not bother to give any explanation forcondonation of delay in their application forrestoration, as is evident from the contents ofthe said application for restoration. Rather theyhave choosen to contend the order of dismissal ofthe appeal to be illegal and the condonation ofdelay in filing the certified copy of the decree tobe a matter of right and as a matter of course onthe basis of time that was granted to place onrecord the said certified copy. The matter doesnot end there. The petitioners even do nothesitate to make incorrect statement in the saidapplication for restoration in relation to theapplication which was filed by the Advocate on14.9.1995. Knowing well that the application whichwas filed on 14.9.1995 was only in relation to thecertified copy of the Judgment and order, a solemnstatement is made in para No. 1 of the applicationfor restoration that:-

'Application for certified copy of the decreewas made on 14.9.1995 in the City Civil Court.The certified copy of the decree was notobtained as the proceedings were not traceableor misplaced in the Court.'

The statement has been verified as true to his ownknowledge and belief by the petitioner No. 1 RajNarayan Singh. Nodoubt, when the matter was beingheard an attention was drawn to the said statement,the learned Advocate for the petitioners on behalfof the petitioners submitted that the petitionerswere seeking to tender their apology for the saidincorrect statement. Infact it is too late toentertain any such apology on behalf of thepetitioners as regards the said incorrectstatement, as the submission in that regard hasbeen made only after drawing attention of thepetitioners to the said fact. The said statement isfrom the application filed by the petitionersthemselves. The application was filed knowingwell that it was pertaining to the condonation ofdelay in placing the certified copy of the decreeon record. The statement is in relation to thecertified copy of the decree. Being so, thestatement is very relevant statement in relation tothe matter in question and therefore, it cannot bepresumed that the petitioners did not know theconsequences of making such incorrect statement.Be as it may, the same discloses the conduct andthe attitude of the petitioners and both thesefactors are very relevant while dealing with theapplication seeking a discretionary relief fromthis court and more particularly when there is adelay of merely four years in seeking certifiedcopy of the decree.

23. The extension of time to enable the petitionersto place on record certified copy of the decree,as already observed above by itself does notamount to condonation of the delay in filing theappeal. It is not mere lodging of the appeal thatis sufficient but the lodging has to be inaccordance with the provisions of law and byfollowing the procedure prescribed by the law andnot otherwise. The procedure clearly requiredMemorandum of appeal to the accompanied bycertified copy of he decree and in the case inhand Memorandum of Appeal was not accompanied bysuch decree till 23.3.2001. Leave to allow theMemorandum of Appeal to be accompanied by thecertified copy of the decree by itself cannotamount to condonation of delay which has to bedecided by considering material on record to ascertainwhether there has been sufficient cause forcondonation of delay by applying the provisions oflaw in Section 5 of the Limitation Act. An ordercondoning the delay has to be judicious order andshould disclose the application of mind of theJudge and the facts disclosed should constitutesufficient cause for the purpose of condonation ofdelay and more particularly when it is a contestedmatter. Hence, merely because the party who isallowed to place on record certified copy of thedecree and for that purpose time is granted thatitself would not tentamount to condonation of delayin filing the appeal.

24. The contention that appeal was admitted andtherefore there was no occasion for condonation ofdelay is also devoid of substance. As alreadypointed out above, nothing prevents the court frommodifying its earlier order for justifiable reasonand when the party tries to obtain any reliefwithout complying with the mandatory provision inrelation to the procedure which is required to befollowed, the courts are fully empowered to pass anappropriate order in exercise of inherent powers.In the case in hand as already pointed out abovethe order dated 12.12.2000 clearly discloses thatappeal was required to be heard for admission afterplacing certified copy of the decree on record.Being so, merely because the registry had placedthe appeal for the purpose of final hearing thatitself would not mean that judicial order passed bythe court would stand nullified. Mere listing ofthe case alongwith matters fixed for final hearingthat itself would not decide the status of thecase. When the records apparently disclose thatthe matter is still required to be heard onadmission, listing of such matters alongwith otherfinal hearing and even taken up for the purpose offinal hearing pursuant to listing of such matter onthe board containing the matters for the finalhearing that by itself would not disclose the stageat which the matter stands. Being so, it cannot besaid that the matter was admitted and could nothave been disposed of without being heard finally.That apart, considering that the appeal beingcontinuation of the suit and bearing in mindprovisions of Order 41 Rule 17 read with theprovisions of Section 151 and Order 17 of the Codeof Civil Procedure, the default by a party wouldnot restrict to non appearance of the party butwould also include a default in carrying out anyact necessary for the purpose of further progressof the proceedings in the appeal and failure on thepart of the party to the appeal to perform such anact would, empower the court to dismiss the appealfor default. Once the order dated 22.6.2001clearly required the petitioners to explain thedelay and to remove the objection and further beingrequired to face the consequences of failure toexplain the delay and to remove the officeobjection within the specified period and thepetitioners having failed in that regard, nothingprevented the court from dismissing the appeal fordefault on 6.9.2001. Mere absence of the word'default' in the order dated 6.9.2001 would notmake any difference.

25. Curiously, inspite of the through knowledgeof requirement and necessity of an applicationdisclosing sufficient cause for condonation ofdelay, no such application was filed alongwith theapplication for restoration and such applicationwas filed merely seven months after filing of theapplication for restoration, and that too withoutdisclosing any fact justifying the delay and merelyreiterating the contents of the application forrestoration. Undoubtedly, one additional sentencedoes appear in the said application to the effectthat 'however inadvertently the same remained tobe filed as it is not came to the notice of thepetitioners'. Again it is pertinent to note thatone of the petitioners being the petitioner No. 3 isholder of LL.B. degree. There is no satisfactoryexplanation for delay in filing the applications.

26. In the facts and circumstances of the casetherefore, the petitioners having failed to discloseany sufficient cause for condonation ofdelay, the applications deserve to the dismissed andare accordingly hereby dismissed with no order asto costs.