Jayanta Mondal vs Mosammat Zorina Begam & Anr
2021 Latest Caselaw 1661 Cal

 S/L 3.
4.03.2021
   S.D.

                           S.A.T. 292 of 2018
                                 With
                           CAN 4942 of 2018

                        Jayanta Mondal
                              Vs.
                  Mosammat Zorina Begam & Anr.

                 Ms. Tuli Sinha
                                       ......... For the Appellant.

                 Mr. Kamal Kanta Santra
                 Mr. Animesh Das
                                    ...For the Respondent no. 2.

In re: CAN 4942 of 2018

This is an application under Section 5 of the Limitation

Act for condonation of delay in preferring the Memorandum

of Appeal in challenging the judgment and decree dated

15.2.2018 passed by learned Additional District Judge, Fast

Track Court, Serampore, Hooghly.

I have heard the learned Advocate for the appellant

who submits that the appellant has taken out this appeal with

the help of High Court Legal Services Authority by

engagement of a lawyer as the petitioner/appellant is very

poor and could not arrange money for preferring the appeal.

Learned Advocate appearing on behalf of the

respondent submits that there is no merit in the appeal as ex

parte decree passed by the learned Trial Court has been fully

satisfied upon execution and then after four years, the

petitioner/appellant preferred a miscellaneous case under

Order 9 Rule 13 for setting aside the order of decree passed

by the Trial Court. It is further submitted that upon hearing

the parties, the miscellaneous case was dismissed against

which order, the appeal was preferred before the District

Judge by the present petitioner/appellant but that too was

dismissed on the ground that decree has been fully satisfied

upon its execution and there was serious latches by the

present petitioner/appellant who had failed and neglected to

take steps in the suit which resulted in ex parte decree. The

facts stated on behalf of the respondent is a matter of point to

be noted by the Hon'ble Division Bench of this Hon'ble Court

while admitting the appeal on formulation of substantial

questions of law.

This Court is satisfied of the grounds as made out by

the petitioner/appellant on considering the fact of the

petitioner/appellant being a poor man having not taken step

for a considerable period of time because of economic reason

and for that he had to take the help of the High Court Legal

Services Authorities for engagement of lawyer in preferring

the appeal.

Accordingly, the delay of 144 days in preferring the

Memorandum of Appeal is hereby condoned and the

application being CAN 4942 of 2018 is allowed and disposed

of.

Now, let the matter be placed before the appropriate

Division Bench of this Hon'ble Court for hearing under Order

XLI 41 Rule 11 of the CPC.

Urgent certified copies of this order, if applied for, be

given to the parties upon compliance of the usual formalities.

(Shivakant Prasad, J.)