Chittatosh Mookerjee, J. - (1.) Being aggrieved by the order of the learned Additional District Judge, 10th Court. Alipore dated the 18th Nov. 1981 dismissing its application for condonation of delay and for setting aside the order dated 7th July, 1981 by which the said court had dismissed .Title Appeal No. 731 of 1979 for default, the Oil & Natural Gas Commission has preferred this First Miscellaneous Appeal and the Re-visional Application under Section 115 of the Code in the alternative.
(2.) The only point is whether or not the appellant Corporation was prevented by sufficient cause from appearing before the learned Additional District Judge, 10th Court, Alipore on 7th July, 1981 when the aforesaid title appeal preferred by it was called for hearing and dismissed for default. The appellant Corporation made its applications for re-admission of the said appeal on 30th of Oct. 1981, i.e., more than 30 days from the date on which the said appeal had been dismissed for default, therefore, the appellant Corporation was also bound to establish that it had been prevented by sufficient cause from making the said application within the prescribed period of limitation and that the delay ought to be condoned under Section 5 of the Limitation Act, 1963.
(3.) The present case has a chequered history. On 31st May, 1979 the learned Subordinate Judge, 1st Court, Alipore had decreed Title Suit No. 17 of 1971 brought by the plaintiff-respondent, Tridibnath Sanyal. Being aggrieved thereby, the appellant Corporation had presented the aforesaid Title Appeal No. 731 of 1979. The learned Additional District Judge, 7th Court, Alipore had dismissed the said title appeal on the preliminary ground of maintainability. On 19th Feb. 1981 Anil Kumar Sen and B. C. Chakraborty, JJ., by their judgment and order had disposed of the appeal and also the revisional application of the appellant Corporation and had set aside the order of dismissal of Title Appeal No. 731 of 1979 and had remanded the case for fresh disposal by the learned District Judge or by any other learned Additional District Judge (except the learned Additional District Judge. 7th Court) to whom the appeal might be transferred by the learned District Judge. An Assistant Registrar of this Court by Memo No. 2416-S dated 7th April, 1981 had forwarded a copy of this Court's order dated 9th Feb. 1981 along with the entire lower court records to the Additional District Judge, 7th Court, Alipore, 24 Parganas for information and necessary action. The learned Additional District Judge, 7th Court, Alipore had endorsed on the reverse of the said Memo, dated 7th April 1981 of the Assistant Registrar, his order No. 282 dated 2nd June, 1981 the receipt of this Court's order in the lower court and had directed that the same be forwarded to the learned District Judge, 24 Parganas for information and for taking necessary action as directed by this Court. The learned District Judge by his Order No. 26 dated 6-6-1981 recorded that the records had been received with the copy of the High Court judgment whereby the appeal had been remanded for rehearing by a Judge other than the Additional District Judge, 7th Court, Alipore. The learned District Judge by the same order transferred the appeal to the 10th Court of the Additional District Judge Alipore for disposal. The learned Additional District Judge, 10th Court, Alipore by his Order No. 47 dated 16th June, 1981 recorded that the records had been received on transfer for disposal. The learned Additional District Judge fixed 7th July, 1981 for preemptory hearing. On 7th July, 1981 the learned Additional District Judge, 10th Court. Alipore passed the following order:-- "Parties have taken no steps and none found present in Court on repeated calls. It is now 11.35 A.M. Hence Ordered. That the appeal be and the same is dismissed for default. Memo of appeal is sufficiently stamped.";