CSA 101/2008 -Vijay Chandra & Ors. Vs. Gyan Dutt . Judgment dt.16.12.08 1/2 S.B. CIVIL SECOND APPEAL NO.101/2008 Vijay Chandra & Ors. Vs. Gyan Dutt. Date of Order : 16th December, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Pankaj Bohra for the appellant. Mr. D.D. Chitlangi for the respondent. --------- 1. Heard learned counsels. 2. The first appellate court has dismissed the appeal of the defendant on the ground of appeal being barred by limitation. The same was barred by 135 days. The appellant has explained the said delay by submitting that one of the appellant Smt. Sona Devi was suffering from paralysis and also that the appellant's counsel was misled to believe by the opposite counsel that if the appeal is not filed against the decree, the money under the mortgage in question would be paid to the appellant. However, since the same was not paid, after delay of 135 days, the present appeal was filed before the first appellate court which was dismissed as time barred. 3. The learned counsel for the respondent opposes the present appeal on the ground that the appellant Shri Vijay Chandra himself was an Advocate and, therefore, it cannot be believed that he was misled by any opposite counsel and, therefore, the first appellate court was justified in rejecting the appeal as time barred. CSA 101/2008 -Vijay Chandra & Ors. Vs. Gyan Dutt . Judgment dt.16.12.08 2/2 4. Having heard learned counsels and upon going through the impugned order, this Court is satisfied that the first appellate court ought to have decided the appeal on merit instead of rejecting the same as time barred. 5. Consequently, this second appeal is allowed and the impugned order of first appellate Court dated 3.5.2007 is set aside. The appeal is restored to the first appellate court for decision afresh on merit. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.39 babulal/-