^ HI@H COURT OF CHH^mS^ARH AT BIL^.SPUR Second ^oeeal No.387 of 2009 SB : Hon'bieMr'. T.P. Sharma. J. ,4e&ellonts 1. Sukhnandan S/o Late Bishal Chandrakar, aae 50 yeGrs. 2. ' Bhusan S/o Late Bisha! Chandrakar, age 38 years. 3. Rohit S/o Late Bisha! Chandrakar, age 36 years, 4. Puno, Bai D/o Late Bisha! Chandrakar, age 53 years, •5. Urmila Bai &/o Late Bi^ha! chandrakar, age: 48 years. 6. Shal! Kumari D/o Late Bisha! Chandrakar, age 46 years. 7< 5ularl Bai D/o La1%' Bishal Chandraj<ar, age 42 years. 8. Dha! Singh S/o Late Puranik Chandrakar, age 48 years. 9. Arjun Singh S/o Late Puranlk Chandrakar, aae 40 years. 10. KaushSiya-Bol D/o Uxte Purcinik Chandrakar, age 55 years. 11. Savitrl Bai D/o Lote Puranik Chandrakor, age 50 years. A!! R/o vi!la9e Vinayak Pur TehsH & District Durg (C.e.) 12. Durvasha S/o Manrakhan ChQndrakar, age 60 years. 13. Rekh La! -S/o Manrakhcn Chan.drakar, age 50 ycGrs. 14. Kr'ishna Kum'or S/o MQnrakhan Chandrakar, age 50 years. 15. Janak Bai D/o Manrakhan Chandrakar, age 58 years. ^j!S^-^^<^^ ^,,..^ "'^ /€^ 1 •^^^^ ^ g Res!?ond€rlts 16. Makund S/o Punit Chandrakar, age 50 years. 17. Ajit S/o Punit Chandrakar, age 58 years,, 18. Teman Lal S/o Punit Chandrakar, age 55 years. 19- ©opa!S/o Punit Chandrakar, age 45 years< 20. Saraswatl Boi r)/o Punit Chandrokar, age 40 years, Appeliant No.12 to 20 is the resident of Viiiage - Lohar Singh, Tehsi! - Patan, DiStrlct Durg (€.©.). Versus 1. ^opendra S/o Latc Bodhan Chandrakar, aae 20 years. 2» Kama! Narain S/o Late Bodhan Chandrakar, age 18 years, 3. Khlleshwarl D/o Late Bodhan Chandrakar, age 16 yeors. 4. Deep Mala D/o Lote Bodhan Chandrakar, age 14 years, ftespondent No.3 to 4 through Natural gyardian Smt.Nirmia Bai Wd/o Late Bodhan Chandrakar, age 42 years, 5. Smt.Nlrma! Bai Wd/o Late Bodhan ChandrGkQr, 090 42 years, Above said aSI Respondents are the resident of Viiiage - Vinayak Pur, Tehsil & District - Durg (C.6.) 6. State of Chhattisgarh through Co!lector Durg (C.6.) (SECONG .APPEAL UNDER SECTION 100 OF THE CODE OF CTW- PROCEDURE, 1908) Present : Mr-Uttam Pandey, counsel for the appeilant. Mr,Sanjeev K<AQrawGJ, Panel lawyer for respondent No,6/State. Jud^ment (Passed on 17th September, 2009) I<A.No.2 for taksng addstiona! documents on record, On due consideration, lAMo.2 is albwed. Document is taken on record- L This second appeai is directed against the order dated 24.4.2009 passed by the Seyenth Additiona! Dsstrict Judge (FTC), Durg in unregistered civlj appea! (Sukhnandan A 17 others v. Sopendra & 5 others). 2. Heard on admissson. 3. I have perused the copies of Judgment & decree of the Courts below. 4.. The appea! is Qdmltt'ed for consideratlon on 1fiie following substantial question of taw^- "Whether the bwer appelbte Court has committed l!!ega!ity in dismissing the appeai as tsme barred? 5. Learned counss! for th®q?psi!aits submits that ths 5th CivjS Judgs Class-II, Durg has dismissed the suit vide Judgment & decree dated 10J.1.2008 in Ciyi! Suit No.284,/08 ond decree was prepared on 17.11.2008. The appeilants have filed oni application for certified copy of the Judgment and decree on 18.1t2008, Copy was de'ivered to the appeitonts on 24.12.2008 and thereafter they have filed clvl! appeo! before the lower appellate Court on 13J..2009 which was dlsmissed by the said Court on the ground of limltatlon that it has been flled after 63 days of the Judgment & decree and no appllcatjon for condonation of deby has been ftted. Learned counsel further submsts that it is ctear from the copy of the judgment and decree filed on behalf of the appeSlants that decree has been prepared on 17.11.2008, Appljcatlon for certlfied copy of the Judgment and decree ^vas fiSed on 18.11.2008 and certifled copy has been deliyerec! on 24.12.2008. The appe!!ants have preferred an oppea! withln tlrpe before the appellate Court, but the appelbte Court has ijiegally dismtesed the appeal on the 9round thot appea! wos time bQrred. Learned counsel also submits that it Js cJear from the copy of the Judgment and decre^ thot the appeal was fil.ed within Simitation, but the q)petlate Court has iltegaiity dtemissed the 6. From peruso! of the order impugnsed/ it revea!s thdt decree has been prepared on 17.11.2008. AppJication for certified copy was flted on 18.11.2008 and certified copy was dellyered on 24J2.2008 arsd thereofter the appeltents have preferred an appeal before the lower appelbte Court on 13.1.2009. Patently, the appeal was within Hmitation. The Court below has not considered and excluded the time spent for taking certified copy for which the appellants are entitied and has iilegoliy dismissed the appea!. The Court be!ow has not admitS'ed the appea! and has not issued notice to the respondents, therefore, notic^ in the present appea! to the respondents are herewith dispensed with. 7» Substantsa! questson of law forrputated for decision of this appea! is decided as positlve and consequent to the finding on the substontja! question of !aw, the appeal deserves to be a!!owed and It is accordingly aliowed. Order dated 24.4»2009 is hereby set aslde. The case js remitted back to the bwer appeitate Court for declding the appeai on merits. TTie Gppellants are dlrected to present before the bwer .Appelbte Court on 30,9.2009- However, the respondents may take recourse of review, if they so advised. No order as to costs. Sd/- T.P. Sharma Judge B/-