- (1.)Register this ass Review application. This is an application under Order 47 Rule 1(1)(b), read with Section 151 of the Code of Civil Procedure to review the order dated 4.5,81 pawed by a Division Bench of this Court in F.A. (t) 97/81 now registered as F.A. 17/81. Learned Counsel for both the patties submit that this application should be disposed of to -day.
(2.)THE Appellant -opposite party filed an appeal against the judgment and decree passed by the Assistant District and Sessions Judge, Barpeta in Money Suit No. 2/73, the appeal was presented before this Court after the expiry of the period of limitation specified there for. It was accompanied by an application supported by an affidavit setting forth the facts on which the Appellant relied to satisfy the Court that he bad sufficient cause for not preferring the appeal within the period of limitation, This application came up for consideration before a Division Beach on 4.6.81 and the application was accepted and the delay was condoned. Learned Counsel for both the parties admit that the order was rendered without serving any notice to the Respondent opposite party. When an appeal If' presented after the expiry of the period of limitation it mutt be accompanied by an application supported by an affidavit setting forth the facts on which the Appellant relies that he had sufficient cause for not preferring the appeal within such period. Under the provision of Order 41 Rule 3A(2) of the Code of Civil Procedure, for short the Code, the Court may reject an application end in that event, notice need not be sent to the Respondent. However, if the Court finds that there exist the reason to accept the application the, Appellant shall issue notice to the Respondent then and then only it would finally dispose of the application for condo nation of delay. We extract the provision of Rule 3A(2) of Order 41 Rule 3A of the Code.
3A. (i) * * *

(2) If the Court sees no reason to reject the application without the issue of a notice to the Respondent, notice thereof - 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) * * *

(3.)THUS , it appears dear from the provisions of Order 43 Rule 3A(2) that the Court cannot accept in application for condo nation of delay without serving the notice to the Respondent. It is a statutory obligation of the Court. Rather, the prevision provides the Court not to accept the application for condo nation of delay without serving the notice on the Respondent.
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