The above titled second appeal has been filed against the decree and judgment passed by District Judge, Bagh dated 30.07.2013. The appeal has been filed on 30.10.2013 against the decree and judgment of the lower Court dated 30.07.2013. The appeal has been filed on 91st day of pronouncement of judgment and decree of the first appellate Court which is apparently barred by law of limitation. The parties were directed to furnish arguments on the point of limitation, as prima-facie the appeal has been filed beyond the period of prescribed limitation of 90 days.
2. Learned counsel for the appellants is of the view that standing counsel for the Public Works Department (PWD) applied for copy of decree of the first appellate Court on 2.6.10.2013, which was issued on 29.10.2013. The instant appeal has been filed on 30th October 2013, which is within limitation by excluding the time spent in obtaining copy of the decree. He has relied on 2014 SCR 479 in this behalf. While deciding the point of limitation, Hon'ble Supreme Court of Azad Jammu & Kashmir, in Para 7 of the aforementioned judgment has laid down as under: "Firstly we will decide the question of limitation. The judgment was announced on 26th August, 2011.
The appellants applied for the copies of the judgment on 22nd October, 2011. The Court fee was filed on 25th October, 2011 and the copies were ready for delivery on the same date but the same were delivered on 31st October, 2011. Whether the appellants were entitled for condonation for the period commencing between the day the copies were ready for delivery and the day, the were ere delivered, or not. The proposition was considered-by the full Court in the case titled Muhammad Siddique Vs-. Muhammad Aslam and others (Civil Appeal No, 106 of 2004, decided on 22nd May, 2013) by observing that respondent is entitled for exclusion of time actually spent in obtaining the copies of judgment and decree from the date of application to the date when the copies were delivered."
3. On the other hand, learned counsel for the respondents is of the view that appellants obtained copy of judgment of the first appellate Court on 25.10.2013 and they were in a position to file appeal before the High Court within prescribed period of limitation. But the appellants applied to the Court below for issuance of copy of decree on 26.10.2013, out of mala-fide intention. He has further diverted my attention towards an approval of Law Department for filing appeal before the High Court dated 24.09.2013. Learned counsel is of the view that the appellants advertently delayed application for obtaining copy of decree.
4. I have heard learned counsel for the parties and am of the view that the instant appeal has been filed beyond the period of limitation. 1 he appellants are not entitled to benefit of time spent in obtaining copy of decree of the first appellate Court for the reason that it was obligatory on the appellants to file an application for condonation of delay, The appellants neither filed an application for condonation nor even requested for condonation through the memorandum of appeal. In order to seek condonation, it is obligatory on the appellants to file separate application alongwith an affidavit. It has been held in 1985 CLC 1072 as under: "It is essential for an appellant seeking condonation of delay to make formal application under Section 5, duly supported by an affidavit. In the absence of such application, the appellate Court has no power to condone delay even under Section 151."
5. In view of above, the appellants cannot be given benefit of time spent in obtaining copy of decree of the first appellate Court because the appellants have not applied for condonation of delay, despite the fact that appeal was filed with a delay of one whole day. The appeal is not competent. It is, therefore, dismissed on the point of limitation. Record of the Courts below be sent back forthwith.