SAHIDULLAH MUNSHI,J. - (1.) In Re: C.A.N. 1172 of 2017 This is an application under Section 5 seeking condonation of delay in filing the second appeal. From the note given by the Additional Stamp Reporter on 14th June, 2016, it appears that the appeal is barred by 2109 days. In the peculiar circumstances, this delay of 2109 days has occurred in filing the present appeal.
(2.) The appellants/petitioners herein were defendants in a suit for partition where the plaintiffs prayed for absolute title in respect of 'Ka' schedule properties where the defendants had some interest. The First Court decreed the suit against which an appeal was filed by the defendants. The Appellate Court disposed of the appeal by a judgement and decree dated 1st April, 2009. In the ordering portion of the judgment it has been mentioned by the Appellate Court below that the appeal is allowed on contest without costs against the contesting respondents and the same is allowed ex parte against the non-contesting respondents without costs. The learned Appellate Court below further mentioned that the judgment passed by the learned Civil Judge (Senior Division), 2nd Court, Paschim Medinipur in Title Suit No. 40/94 passed on 30th July, 2005 and decree signed on 24th August, 2005 is hereby set aside. In another part of the order, the learned Court below mentioned:- "that the suit be and the same is decreed on contest in preliminary form but without cost against the contesting defendants and same is decreed ex parte in preliminary form without any costs against the non-contesting defendants and the plaintiff's right, title and interest in respect of 3.68 acres of land out of total 'kha' schedule property is hereby declared and similarly the right, title and interest of Keshab, Sudhir, Sujan and Sarala each in respect of 2.32 acres of land each out of the 'kha' schedule property is hereby declared. Accordingly, the plaintiff is entitled to 3.68 acres of land out of the total 'kha' schedule property in his allotment at the time of partition and accordingly a preliminary decree of partition is hereby passed for allotment. Accordingly, the parties are directed to amicably partition the entire 'kha' schedule property, which is still in ejmal possession of the heirs of Trailakya, but invariably within two months from the date of this order, failing which either of the parties may file application praying for final partition and for allotment and as and when the survey passed learned Advocate Commissioner shall be appointed, he shall have to allot 3.68 acres of land out of the 'kha' schedule property to the plaintiff Durgacharan and 2.32 acres of land each to Keshab, Sudhir, Sujan and Sarala or their heirs out of the 'kha' schedule property and it is to be mentioned that the total area of 'kha' schedule property is 12.96 acres and at the time of allotment learned survey passed Commissioner shall have to keep in his mind that the allotment must be made by giving both the parties all chances for enjoying the property and for that purpose ingress and egress of the property must be maintained. Send a copy of this order along with the L.C.R. to the learned Court below for proceeding with the final decree. Since the appeal was allowed." Also send a copy of this order to the learned District Judge, Paschim Medinipur, for directing his office to note down the result in the concerned register."
(3.) Since the appeal was allowed and nothing mentioned in the judgment that the appellants' prayer in respect of 'ka' schedule property was refused, the conducting advocate in the Court below advised the client that he should file an application in the First Court seeking final decree. According to the averment in the application for condonation of delay, such application seeking final decree was filed on 5th January, 2016 and, in the meantime, one of the plaintiffs died on 3rd September, 2011 and he was also substituted by the learned First Court. Thereafter a survey passed Commissioner was appointed and for the first time, the appellants/petitioners found that there was a finding of the learned Judge in the First Appellate Court that the plaintiffs acquired right, title and interest in respect of 'ka' and 'ka/1' schedule property by virtue of exhibit 2 and 2A of the application and it was only then the appellants came to know that the judgment and decree passed by the lower Appellate Court was against them and they immediately filed an appeal before this Court on 20th May, 2016. While considering the averments made in the application for condonation of delay from the reply filed by the appellants in connection with this application, it appears that the present respondents also filed an appeal before this Court being S.A.T. No. 351 of 2009. The said appeal is yet to be admitted. However, since the respondents have filed an appeal and that is pending and identical questions are to be decided in both the appeals, I do not find any reason to disallow the prayer for condonation of delay. That apart, there is no mala fide on behalf of the appellants to prefer the appeal within time. The explanation, which has been offered in the application, is sufficient to hold that they were misled by the order at the end of the judgment of the learned Appellate Court below. Therefore, the defendants/appellants bona fide proceeded for drawing up final decree.;