' Appellant is aggrieved of the order dated 31-7-2000, passed by the learned Judge Banking, whereby his application under section 12(2), C.P.C., for setting aside of the judgment and decree dated 3-12-1998, was dismissed.
2. Briefly stated the facts of the case are that respondent-Bank filed a suit for recovery inter alia against the appellant, respondents Nos.2 to 4 and Messrs Automobile Armature Industries, of which the appellant and the said respondents were the partners, which was decreed on 3-12-1998. It may be pertinent to state here that the said decree was a consent decree, as defendant No,3, the partner of the firm made a statement to make the payment of the decretal amount, which offer was accordingly accepted by the Bank and the aforesaid decree was passed. The appellant did not file any appeal against the said decree, rather moved an application under section 12(2), C.P.C.
On 12-4-1998. On this application, learned Court, directed the appellant, etc. To deposit the decretal amount in the Court, which order was not complied with and thus vide order dated 31-7-2000, the application was rejected.
3. We have been told by learned counsel for the respondent-Bank that the appellant and other defendants challenged the aforesaid decree, through a Writ Petition No,5527 of 1999, which was dismissed. Another petition to the same effect was also disallowed by this Court. These facts have not been disputed by the appellant. Anyhow, on 8-6-2002, present appeal was filed, challenging the order of the learned Banking Court dated 31-7-2000. Alongwith the appeal, C.M. No,1-C of 2002 under section 5 of the Limitation Act, seeking condonation of delay has also been moved. The learned counsel for the respondent has also raised the objections of limitation and competency of this appeal, as the preliminary objections.
4. We have heard learned counsel for the parties. Admittedly, the order assailed in this appeal is dated 31-7-2000. It is the case of the appellant in C.M. No,1-C of 2002, that he had applied for the supply of copy of this order on 26-8-2000, but the copy was not provided. The appellant himself and through his counsel and the clerk of the counsel time and again, kept approaching the agency, still the needful was not done, on the pretext that the form is not traceable, thus constraining the appellant to move an application before the learned Banking Court dated 22-3- 2002, seeking direction for the supply of the copy. On the said application, learned Court vide order, dated 3-4-2002, directed that copy be immediately supplied to the appellant, which was not made available to the appellant till 24-4-2002. It is stated in the application that "in compliance of the order of the learned lower Court, dated 3-4-2002, appellant approached the copying agency for obtaining the certified copy of order dated 31-7-2000, but again the said officials have not provided the requisite certified copy to the appellant till 24-4-2000. On the same day i.e. 24-4- 2000, the appellant filed another application before the learned lower Court for supply of certified copy of order 24-5-2000, 31-7-2000 and the certified copy of order passed on the previous application of the appellant. After filing this application, the copying agency delivered the copy of the order dated 31-7-2000, which was the copy of order passed in execution petition and not that of passed on the application of the appellant under section 12(2) read with section 151 for setting aside the decree dated 3-12-1998, which the appellant had applied. That upon this, the appellant again filed another application on 25-4-2002, before the learned lower Court stating therein that he has not been supplied with the required copy of order dated 31-7-2000 and made a request that he may be supplied the requisite copies of order's dated 31-7-2000 and 24-5-2000; the said application was accepted by the learned lower Court vide order dated 25-4-2000 and the appellant was directed to file a regular sawal form for obtaining the required certified copies. As the said order was passed by the Presiding Officer of the learned lower Court while sitting in Chamber, therefore, the appellant, came to know about the said order on 27-4-2002, and thus on the same day, filed a sawal form No,179 of 2002 with the copying agency of the learned lower Court, who did not issue any receipt of the said sawal form regarding the date of delivery of certified copies of the orders and on 8-5-2002, in the afternoon, the appellant came to know that the required certified copies of the orders have been prepared and thus had received the certified copies on the same day at about 1-30 p.m. And thus the appeal is being filed today without any delay."
' It may be pertinent to reiterate that the present appeal was filed on 8-6-2002.
5. In the order dated 25-4-2002, learned Banking Judge has observed "The petitioner himself has submitted an application that he received the copy of the order dated 31-7-2000 on 24-4-2002", which fact today has not been controverted by the counsel for the appellant. However, the case of the appellant that this order is not the one passed on the application under section 12(2) but was an order on the executibn file, is absolutely misconceived, because the copy of the order challenged in appeal and appended thereto is that which was delivered to the appellant on 24-4- 2002. It is thus incorrect to argue that copy of order dated 31-7-2000 passed in the execution file, was delivered to the appellant on 24-4-2002. The present appeal as mentioned above, had been filed on 8-6-2002 and computing the time from the date of delivery of the copy dated 24-4-2002, present appeal is undoubtedly beyond the period of thirty days, no plausible explanation qua delay in filing the appeal within 30 days of obtaining this copy has been given.
6. Moreover, it is most improbable that the appellant had been waiting for one and half year to obtain the copy. If the copying agency was unable to trace his first form, he could have approached the Court immediately instead of waiting for so long. It seems that the appellant slept over the matter and by taking advantage of the lapse of time and of the fact that the old record was not traceable, made an abortive attempt to save the limitation against him. If the appellant was seriously aggrieved of the order passed on his application under section 12(2) he would definitely had made efforts, which were subsequently made to obtain the copy within reasonable time.
7. Coming to the question about competency of the appeal, suffice it to say that even under the provisions of C.P.C., an order passed on an application under section 12(2), C.P.C. Which provision has been made applicable before the Banking Court under the principles of legislation by reference, no appeal is provided. It is inconceivable that legislation in the special laws by making the final order of the Banking Court, appealable, has provided a remedy of appeal to a person, whose application under section 12(2) has been dismissed. Therefore, the present appeal is incompetent. It may be pertinent to state here that no request in writing or verbal has been made by the counsel for the appellant for treating this appeal as Constitution petition.
' In the light of both the above counts, we hold that the present appeal is barred by time, as no sufficient cause in the application for condonation of delay has been made out and also the appeal is incompetent, the same is hereby dismissed.