HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT/: (Defendant) RESPONDENTS/: (Plaintiffs) (Defendant) SecondADpeal No.127 of 2007 Surendra Kumar Sahu, S/o Late Ramji Sahu, aged about 45 years, R/o Dogripali, Tehsil, P.S. & Distt. Mahasamund (Chhattisgarh) Versus 1. Santosh Sahu, S/o Ramji Sahu, aged about 48 years, R/o Ward No.33, Budhapara, Raipur, Distt. Raipur (Chhattisgarh) 2. Jairam Sahu, S/o Ramji Sahu, aged about 43 years, Block No.2, Quarter No.3, Century Cement, Baikunthpur, Tehsil & Distt. Raipur (Chhattisgarh) 3. Smt. Rukmani, W/o Mehtar Ram Sahu, aged about 53 years, R/o Village Dogari Pali, Tehsil & Distt. Mahasamund (Chhattisgarh) 4. State of Chhattisgarh, through Collector, Mahasamund (Chhattisgarh) {Secondappeal underSection lOOoftheCodeofCivilProcedure, 1908} Present: Mr. Sanjay K. Agrawal with Mr. Sourabh Sharma, counsel for the appellant. None present for respondents No.1 to 3, though served. Mr. Sushil Dubey, Govt. Advocate for the State/respondent No.4. Sinale BenGh: Hon'ble Mr. T.P.Sharma, J ORALJUDGMENT (23-7-2009) 1. Legality and propriety of the order dated 10-5-2001 passed by the 1 Additional District Judge, Mahasamund in Civil Appeal No.lO-A/2001 is ynder challenge in this appeal. 2. Order is challenged on the ground that the Court below has committed illegality by dismissing the first appeal only on the ground of 13 days delay and the Court. below has not accepted the explanation offered on behalf ofthe appellant. 3. Brief facts giving rise to filing of this appeal are that the present appellant has challengedthe judgment & decree dated 17-1-2001 passed by the 1st Civil Judge Class-11, Mahasamund in Civil Suit No.259A/98 andthe appeal was filed after 13 days of its Ijmitation. The appellant has also filed application for condonation of delay in filing the appeal in which it has been mentioned that knowledge ofthejudgment & decree cameinto notice of the appellant on 3-4-2001 vide letter written by the counsel on which after obtaining copy of the judgment & decree he has filed the appeal. But the Court below has not considered the explanationoffered on behalf of theappellant and has dismissed the appeal as barred by limitation. 4, Following substantial questions of law are framed for disposal of this appeal:- (i) Whether the First Appellate Court was justified in rejecting the application for condonation ofdelay? (ii) Whether the First Appellate Court was justified in rejecting the application for condonation of delay by not deducting the time lapsed between the date of pronouncement ofjudgment and the decree? . 5. I have heard learned counsel for the parties, and perused the order impugned, judgment & decree of the trial Court and record of the Courts below. 6. Learned counsel for the appellant submits that theappeal was filed before the first appellate Court only after 13 days of its limitation. The Court below has not considered the time lapse between passing of judgmerit and drawing up of the decree. Order sheet of the trial Court reveals that the judgment was passed on 17-1-2001, but the decree was finally signed on 2-3-2001 after lapse of 1 month 16 days and if the time spent in preparationof decree is excluded then his appeal is within time because he was required to file appealagainst thedecreed and the decree was not available prior to 2-3-2001. Learned counsel further submits that the appellant has filed firstappeal on 4-4-2001 within one month 2 days ofpreparation ofthe decree. 7. Judgmentdated 17-1-2001 passed by the trial Court reveals that deficient Court fees was paid on 23-2-2001, after payment of Court fees the decree was prepared on 26-2-2001 and the decree was signed by the trial Judge on 2-3-2001. Taking into consideratjonthe special facts of the case it was not possible for the appellant to prefer the first appeal \ before preparation of decree i.e. 2-3-2001 or to get the copy of decree forfiling oftheappeal. 8. The appellant has preferred first appeal after lapse of only 13days and theexplanation offered by the appellant is sufficient cause for filing of the appeal after lapse of limitation. But the Court below has mechanically rejected the application for condonation of delay in filing the appeal and thereby committed illegality. Therefore, substantial question No.1 is decided as negatjve and substantial question No.2 is also decided as negative against the respondents. 9. For the foregoing reasons, the appeal is allowed and the order impugned is hereby set aside. The case is remitted back to the first appellate Court for hearing the appeal on merits. Parties are directed to appear before the appellate Court on 27 August, 2009 for further hearingofthe case. No orderas to costs. lO.Decree be drawn up accordingly. Soma Sd/- T.P. Sharma Judge