V.G.PALSHIKAR, J. - (1.) While considering First Appeal No. 493/91, Hon'ble Mr. Justice N. K. Jain noted two Division Bench judgments of this Court apparently taking conflicting views in regard to the provisions of Order 41, Rule 3-A of the Civil Procedure Code and Rules 132 and 134 of the Rajasthan High Court Rules, 1952. He, therefore, placed the matter for appropriate orders before the Division Bench.
(2.) The Division Bench consisting of Hon'ble Mr. Justice K. C. Agrawal, the then Chief Justice and Hon'ble Mr. Justice A. K. Mathur, again considered the relevant provisions of law and came to a conclusion that the decision holding these provisions of law as directory, was preferable to the decision holding the provisions to be mandatory.However, in view of the settled position of law of precedence, the matter was placed before a Full Bench, referring the following questions for opinion of the full Bench :- " 1. Whether, in view of Rules 132 and 134, a time barred appeal when filed, must accompany along with memo of appeal, an application under Section 5 of the Limitation Act, 1963 along with affidavit or condonation application can be filed later on, if so, what is the effect of the relevant rules ? 2. Whether the provisions of Order 41, Rule 3-A, C.P.C. is mandatory and the application under Section 5 of the Limitation Act, 1963 for the condonation of the delay in filing afterwards ?"
(3.) We have heard Mr. A. L. Chopra, Advocate, Mr. B. L. Purohit, Advocate, for the appellants and Mr. Kailash Joshi for the respondents.;