SAMBUDDHA CHAKRABARTI,J. - (1.) This is an application under Section 5 of the Limitation Act for condonation of delay of 168 days in preferring the present appeal from a judgment and decree dated January 17, 2011. The case of the petitioner is this that after it had received a copy of the order sought to be impugned in this appeal, he was advised to file an application under Order IX Rule 13 of the Code of Civil Procedure for recalling of the order passed on January 17, 2011. The said application was eventually dismissed on contest by a reasoned judgment on June 15, 2011. According to the petitioner, it was under an impression that it would succeed in the application under Order IX Rule 13 of the Code of Civil Procedure but after the dismissal of the said application he has decided to come up with the present appeal. In the process, the delay as mentioned before was caused. In the application no other ground has been made out for the condonation of delay. This appeal was filed on August 10, 2011 and interregnum period between June 15, 2011 and the date of filing of the present appeal has been explained in paragraphs 9 to 15.
(2.) Mr. Mitra, learned Advocate appearing for the plaintiff/respondent has strongly opposed this application. His main submission is that prosecuting a proceeding under Order IX Rule 13 of the Code of Civil Procedure is not to be considered as a valid ground for excluding the time under Section 14 of the Limitation Act. Even that apart that application was also filed at a time by which the time to file the appeal had already expired.
(3.) Having heard the learned Advocates for the parties and having gone through the materials on record, we are of the view that there is sufficient justification in the submission made by Mr. Mitra, learned Advocate for the respondents. The exclusion of time of proceeding bonafide, as provided in Section 14 of the Limitation Act, makes it very clear that the other court must be a court without jurisdiction in order to get benefit of exclusion of time in Section 14. In other words, as decided in M/s. William Jacs and Company (India) Ltd. v. Sumitra Sen, reported in AIR 1984 Calcutta 12 , though Section 14 of the Limitation Act does not apply on its premise to an appeal, the principles underlying the same do apply and can be invoked in aid of a sufficient cause contemplated by Section 5 of the Act. The Division Bench considered that one of the basic requirements of Section 14 is that the remedy pursued must fail on the ground of defect of jurisdiction or other causes of like nature. The words "causes of like nature" read in their context obviously denote that the defect must be of such a nature as would prevent the court from deciding it on merits. Therefore, if the remedy under Order IX Rule 13 of the Code of Civil Procedure is available under law and when pursued had failed on its merits, it cannot furnish the basis for invoking the principles. Their Lordships held that the time spent by the appellant in unsuccessfully prosecuting an application under Order IX Rule 13 of the Code of Civil Procedure against the very decree under appeal which failed on its merit cannot be excluded for computing the period of limitation for the appeal subsequently filed against the said decree.;