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Judgment
A.S. Nehra, J.—This regular second appeal is directed against the judgment and decree dated 13.9.1991 passed by the District Judge, Amritsar, by which the application, filed by the appellants under Section 5 of the Limitation Act, 1963 for condoning the delay of 6 days in filing the appeal before him, was dismissed and the appeal filed by the appellants was also dismissed by the District Judge as barred by time.
The learned counsel for respondent No. 1 has stated that this appeal is not maintainable in view of a Division Bench decision of this Court in Des Raj v. Om Parkash and another, AIR 1986 Punjab and Haryana 3 : 1985 R.R.R. 195. The learned counsel for the appellants has conceded that the instant appeal is not maintainable. Faced with this situation, the learned counsel for the appellants has submitted that this appeal may be treated as an Application under Article 227 of the Constitution of India to correct the jurisdictional error of the Court below. In support of his argument, he has relied upon Bal Kishan and others v. Tulsa Bai and another, AIR 1987 Madhya Pradesh 120, which is fully applicable to the facts of the present case.
The learned counsel has further submitted that the lower appellate Court has failed to exercise its jurisdiction while declining the application for condoning the delay of 6 days in filing the appeal before it. In support of his argument, he has relied upon Naubat Ram Sharma v. Additional District Judge II, Moradabad and others, AIR 1987 Supreme Court 1352.
After hearing the learned counsel for the parties, I hold that this is a fit case in which I should exercise my jurisdiction under Article 227 of the Constitution of India to set at naught the extra jurisdictional exercise, undertaken by the lower appellate Court in rendering the impugned judgment and decree. Accordingly, while allowing this petition the impugned judgment and decree passed by the lower appellate Court are set aside, the application filed under Section 5 of the Limitation Act by the appellants is allowed and the delay in filing the appeal before the lower appellate Court is condoned. The case is remitted to the lower appellate Court with the direction to decide the appeal on merits.
The parties, through their counsel, are directed to appear before the District Judge, Amritsar on 22.4.1992.