MUSTT RUPJAN BEGUM Vs. MD AZIZUR RAHMAN SAIKIA AND 5 ORS
HIGH COURT OF GAUHATI
Mustt Rupjan Begum
Md Azizur Rahman Saikia And 5 Ors
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Mir Alfaz Ali, J. -
(1.) This second appeal is directed against the order dated 27.3.2017, whereby the learned Civil Judge, Guwahati rejected the petition u/s 5 of the Limitation Act for condonation of delay in filing the T.A. No. 115/2014 against the judgment and decree dated 31.08.2013 passed in T.S. No.281/07 and consequent dismissal of the first appeal.
(2.) The brief facts leading to the present second appeal are that the appellant herein as plaintiff filed T.S. No. 281/07 for declaration of right, title and interest and confirmation of possession. In the suit the defendant raised a counter claim for declaration of his right of preemption and right to purchase the suit land and also for declaration that the sale deeds executed in favour of the plaintiff were illegal, void and not binding upon the defendant/respondent No. 1. The suit filed by the plaintiff was withdrawn. However, the court proceeded with the counter claim.
(3.) The learned trial court decreed the counter claim of the plaintiff by judgment and decree dated 31.8.13. Later on, the decree was amended without giving notice to the plaintiff/appellant. After receiving notice of the execution proceeding, the plaintiff/appellant came to know about the amendment made in the decree. Because of lack of communication between the lawyer and parties and the illness of the appellant as well as the engaged counsel, there was delay of 281 days in preferring the appeal against the judgment and decree, which was subsequently amended. Therefore, a petition u/s 5 of the Limitation Act was filed for condonation of delay in preferring the appeal. Learned first appellate court rejected the prayer for condonation of delay and consequently, the appeal filed by the plaintiff/appellant stood dismissed. Against the said order rejecting the petition for condonation of delay and consequent dismissal of the first appeal, the plaintiff/appellant preferred the instant second appeal. The second appeal was admitted to be heard on the following substantial question of law :-
1. In view of the order dated 17/1/2014 passed by the trial court modifying the decree whether the period of limitation in the instant case would run from the date of modification of the decree ?
2. Whether the court below committed illegality in construing sufficient cause by failing to take note of the order dated 17.1.14 ?;
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