Summary

The appellant obtained an ex parte decree in a pre-emption case, which was later set aside under Order IX Rule 13 of the Code of Civil Procedure, after which the case was dismissed on contest. Her miscellaneous appeal before the Subordinate Judge, Cox's Bazar was dismissed for default in 1987 when her advocate was absent. More than a year later she applied under Order XLI Rule 19 for re-admission of the appeal, with an application under section 5 of the Limitation Act for condonation of delay, claiming she had been ill. The Subordinate Judge rejected the condonation application and dismissed the re-admission case because she produced no medical certificate or other evidence of illness. The High Court Division admitted her appeal in 1989. Her advocate later died and notices to her drew no appearance. Finding the order below reasoned, the court dismissed the appeal, more than 37 years after the impugned order, and vacated the earlier status quo order.

Issues

1. Q1

   Whether the court below erred in refusing to condone delay in an application to re-admit an appeal dismissed for default, where the claimed illness was not supported by any evidence.

Key points

• An application for condonation of delay was rightly rejected where it was filed after more than a year and the claimed illness was not supported by any medical certificate or other evidence.
• A reasoned order refusing to condone delay in seeking re-admission of an appeal dismissed for default called for no interference.
• On dismissal of the appeal, the order directing the parties to maintain status quo as to possession of the suit land was vacated.

Law considered

Code of Civil Procedure, 1908, Order XLI Rule 19Limitation Act, section 5