J.V. Gupta, J. - (1.) THIS revision petition is directed against the order of the Additional District Judge, Gurdaspur, dated February 25, 1987, whereby the appeal was dismissed as not maintainable without the requisite application for condonation of delay under Section 5 of the limitation Act, (hereinafter called the Act.).
(2.) THE Petitioner, Shrimati Puran Kaur, filed an appeal against the ex parte decree of the trial court dated April 23, 1986. The appeal was filed on September 25, 1986, and prima facie was barred by time. Though no separate application under Section 5 of the Act, for condonation of delay as required under Order XLI Rule 3 -A of the Code of Civil Procedure (hereinafter called the Code) was filed along with the memorandum of appeal, yet a specific note had been given at the foot of the memorandum of appeal that the same was being filed beyond the period of limitation for want of the knowledge of the passing of the instant decree and, therefore, a separate application under Section 5 of the Act, was not needed. However, the appeal was duly entertained by the office and notice was issued to the opposite side. At the time of the final hearing an objection was taken on behalf of the Plaintiff Respondent that since no separate application for condonation of delay had been filed as provided under Order XLI Rule 3 -A of the Code, the appeal as such was not maintainable. That objection prevailed with the learned Additional District Judge and he, therefore, dismissed the appeal as not maintainable without the requisite application for condonation of delay. According to the learned Additional District Judge, the provisions of Order XLI Rule 3 -A of the Code, were mandatory and the non -compliance thereof was fatal. The learned Counsel for the Petitioner submitted that since the decree under appeal was ex parte, the Petitioner was not in a position to move the specific application under Section 5 of the Act, but in any case. this fact was duly mentioned at the foot of the memorandum of appeal and the office duly entertained the appeal which was subsequently admitted as well by the Presiding Officer. Thus, argued the learned Counsel, the appeal could not be dismissed later on for want of a separate application under Section 5 of the Act. At the most, the Petitioner could be directed to move the necessary application in that behalf which could be disposed of in accordance with law. In support of the contention, the learned Counsel relied upon Des Raj v. Om Parkash (1985 -2) 88 P.L.R. 293 and Madhukar v. Anant, A.I.R. 1984 Kar 40.
(3.) ON the other hand, the learned Counsel for the Respondent submitted that the provisions of Order XLI Rule 3 -A of the Code, are mandatory and the non -compliance thereof was fatal. Thus, the view taken by the Court below was perfectly valid;