JUDGMENT : P.K. Misra, J. - The present: appeal has been filed by Defendant No. 1 against a final decree in a suit for partition. 2. The geneology which is not disputed is as follows: Kusa Behera \ Hari.Behera I Raghu I L = (w) InduBewa Pandab' Naru (D-2) I I. ISakbina Padi Nila'mani (Dattghter) (Daughter)' (D-I) (D.3J (g..4) Sita Sundari, the Plaintiff, had purchased the interest of Defendant No. 3 and Defendant No. 4. by two separate sale deeds in the year 1950. Subsequently, she filed Title Suit No. 49 of 1961 in the Court of the Munsif, 1st. Court, Cuttack, for partition claiming eight annas share. The contesting Defendants, namely Defendants 1 and 2, raised the question of pecuniary jurisdiction and ultimately the Munsif held that the valuation of the disputed land was Rs. 5,000/- per Gunth and by order dated 27-11-1964 directed that the plaint be returned for presentation before the proper Court. On 6-1-1965, the plaint was re-filed in the Court of the Subordinate Judge, Cuttack, and was registered as Title Suit No. 2 of 1965. The trial court passed a preliminary decree for partition. However it also directed that the contesting Defendants 1 and 2 were entitled to re-purchase the half share in the property from the Plaintiff by paying value of the half share to be determined by the Commissioner. Though First Appeal No. 92 of 1966 was filed by Defendants 1 and 2 against, such preliminary decree of the trial court, the said appeal was ultimately dismissed for default. In the meantime, the Commissioner submitted his report relating to partition of the property and valuation of the shares of Defendants 3 and 4 which had been purchased by the Plaintiff. Defendant No. 2 filed objection. The trial court after hearing accepted the Commissioner's report and...' made the decree final. The present Appellant had been granted three months time to purchase the Plaintiff's share by paying the amount fixed by the Commissioner in his 'report where under the market value of the land had been assessed at Rs. 5,000/- per Gunth. Against the aforesaid order dated 7-2-1975 accepting the Commissioner's report and making the preliminary decree final the present Appellant had filed Misc. Appeal No. 83 of 1975 in the High Court. The said Misc. Appeal was found to be not maintainable and it,was directed that the Defendant-appellant should take steps to convert,the Misc. 5,000/- per Gunth. Against the aforesaid order dated 7-2-1975 accepting the Commissioner's report and making the preliminary decree final the present Appellant had filed Misc. Appeal No. 83 of 1975 in the High Court. The said Misc. Appeal was found to be not maintainable and it,was directed that the Defendant-appellant should take steps to convert,the Misc. Appeal to a First Appeal and to file a certified copy of the decree and deficit court-fee, by order dated 9-7-1975 Subsequently, on 5-8-1975, two weeks time was granted for the aforesaid purpose. The said Misc. Appeal was, however withdrawn by the present Appellant on 20.8-1975. The Plaintiff filed requisite court-fee on 22-9-1980 before the trial court for drawing-up the final decree and the final decree was drawn up and signed by the trial court on 6-1-1981. Thereafter, the present First Appeal has been filed on 1-5-1981 challenging the legality of the order dated 7-2-1975 and the consequent decree dated 6-1-1981. 3. The appeal was filed mainly on the ground that the valuation fixed by the Commissioner towards the value of the proportionate share of the Plaintiff was on the higher side. Subsequently, the Appellant was permitted to raise additional question relating to nullity of final decree on the ground that Defendant No. 2 had expired on 9-4-1974 but her two daughters, who had also right in the property after her death along with Defendant No. 1 had not been substituted and as such the final decree was a nullity. Thereafter, petition has been filed under Order 41, Rule 27, Code of Civil Procedure, for admitting the Death Certificate of Defendant No. 2 as additional evidence indicating the date of death to be 9-4-1974. In the meantime, Plaintiff had filed Execution Case No. 142 of 1981 and possession has been delivered on 27-3-1982. It may be noted that in the said Execution Case, the two daughters had also been noticed as admittedly by then original Defendant No. 2 had expired and no objection had been filed by two daughters relating to excitability of the decree. During pendency of the present appeal, the property which had fallen to the share of the Plaintiff has been sold by her and the purchaser has been impleaded as Respondent No. 4. 4. During pendency of the present appeal, the property which had fallen to the share of the Plaintiff has been sold by her and the purchaser has been impleaded as Respondent No. 4. 4. In the present appeal, the counsels appearing on behalf of Plaintiff-respondent No. 1 and subsequent purchaser (respondent No. 4) have raised a preliminary point challenging the maintainability of the appeal. It is contended that the appeal is directed against the opiated 7-2-1975 by which the preliminary decree was made final and as such, barred by limitation. The learned Counsel for the Appellant has submitted that the decree was, in fact drawn up and signed on 6-1-1981 and thereafter the appeal has been filed within ninety days after excluding the period required for obtaining certified copy of the decree and the judgment. The learned Counsel for the Appellant has relied upon the decision of the Supreme Court reported in AIR 1977 SC 2319 (Udayan Chinubhai v. R.C. Bali) and, contended that the Plaintiff having not paid the court-fee for drawing-up the final decree cannot,take advantage of his own laches and since the decree was actually < drawn up on 6-1-1981, the time required for obtaining the certified copy of the decree including the period from 7-2-1975 should be excluded. 5. In view of the provisions contained in Order 20, Rule 7, C.P. C, there cannot be any dispute' that the date,of the judgment must be taken to be the date of the decree. In the decision of the Supreme Court (A.I. R, 1977 S.C. 2319) it was, however, held that where the delay in drawing up the decree' is actually attributable to the negligence of a party in complying with, the direction relating to payment 'of court-fee, such party cannot take advantage of his own laches and set up the question of limitation against the adversary. In the aforesaid decision, the Plaintiff who had been called upon to pay the deficit court fee had failed, to do so for a considerable length of time and as such, there was delay in drawing-up the decree. The said analogy cannot be made applicable to the presence case. In the present case, though the decree for partition was passed, there was also a decree for re-purchase of the share of the Plaintiff in favour of Defendant No. 1. The said analogy cannot be made applicable to the presence case. In the present case, though the decree for partition was passed, there was also a decree for re-purchase of the share of the Plaintiff in favour of Defendant No. 1. Defendant No. 1 seems to be aggrieved by the alleged high valuation of the share. There was no 'specific direction of the Court calling upon the Plaintiff to pay any deficit court-fee. Defendant No. 1 could have, also filed the requisite court-fee for drawing-up the final decree and he need not have waited till the requisite court fee was paid by the Plaintiff, As such, it has to be held that the appeal it sell was refired by time. 6. The learned Counsel for the Appellant had contended that the contesting Plaintiff-respondent No,' 1 ".after appearance had, never raised the question 'of limitation and such question being raised for the first time during hearing of the,. appeal, should not be countenanced. Section 3 of the Limitation Act, 1963, enjoins upon the court to dismiss a suit or appeal if the same is barred by limitation irrespective of the fact as to whether such question is raised by any of the parties, or not. The mere silence of the contesting Plaintiff-respondent No. 1 cannot be considered to be a ground for holding that the appeal, was not barred by limitation. 7. The learned Counsel for the Appellant further submitted that if such a question would have been raised by the Plaintiff-respondent No. 1, or even by the office, the Appellant could have taken steps for filing appropriate application u/s 5 of the Limitation Act for condonation of delay. He has submitted that the Appellant was under a mistaken notion that the time for filing appeal would start running only after the signing of the final decree and on that basis, he had not filed appeal earlier. Such a submission is not acceptable, inasmuch as the Appellant had in fact, filed a Misc. Appeal which was found to be not maintainable and opportunity had been given to the Appellant to convert the Misc. Appeal to a First Appeal and to file certified copy of the' decree. At that stage, the Appellant withdrew the Misc. Appeal though he could have easily filed the copy of the final decree by filing the requisite court-fee before the -appellate court. Appeal to a First Appeal and to file certified copy of the' decree. At that stage, the Appellant withdrew the Misc. Appeal though he could have easily filed the copy of the final decree by filing the requisite court-fee before the -appellate court. It is apparent-that the Appellant wanted to avoid payment of' court-fee for drawing-up of the final decree. The provision relating to condonation of delay is a discretionary and equitable jurisdiction which is required to be exercised' in aid of litigants who come with clean hands and not to protect litigants who try to convert every litigation to a game of chess where calculated steps are taken. In such view of the matter, I am of the opinion that the appeal was barred by time and there is no sufficient days for condonation of delay. 8. Assuming that there was no delay in filing the appeal or that the.delay deserves to be condoned otherwise, I do not find merit in the appeal also. The learned Counsel for the Appellant has raised two questions while challenging the final decree. Firstly, it has been submitted that the final decree was void on account of the fact that it was passed against a dead person, to wit Defendant No. 2..For the aforesaid purpose, he has sought to prove the date of death of Defendant No. 2 to be 9-4-1974 on the basis of the death certificate produced in this Court. The death certificate has been prepared on the basis of information subsequently given. Defendants 1 and 2 had contested the suit through same lawyer and had filed joint written statement. While the final decree proceeding was going on, it was never pointed out by Defendant No. 1 that Defendant No. 2 had expired on the date now claimed. In the suit itself, a stand was taken by Defendant No. 1 that the daughters of Defendant No. 2 had no right in the property. It is not disputed that during the pendency of the present appeal, execution case was' filed wherein the present Appellant as well as the two daughters of deceased Defendant No, 2 had been noticed. No objection was raised by the present Appellant or his two daughters who had been noticed in the execution case relating to invalidity of the decree on the ground that Defendant No. 2 had expired before the final decree proceeding was concluded. No objection was raised by the present Appellant or his two daughters who had been noticed in the execution case relating to invalidity of the decree on the ground that Defendant No. 2 had expired before the final decree proceeding was concluded. The very fact that the execution case has been allowed to be executed, even as against the two daughters, itself implies that the decree was valid and executable. Such a point was available to be raised by the present Appellant as well as the two daughters who had been noticed. Since no objection had been raised at the stage of Order 21, Rule 22, C.P.C., after issuance of notice, it must be deemed that the death of Defendant No. 2 occurred after the order was passed by the trial court making the decree final. 9. Even assuming that the death took place on the date as claimed now by Defendant No. I, the decree cannot be held to be a nullity. The decision reported in 1989 (I) O.L.R 571 (Saria Bewa v. Balaram Puhan and Ors. is distinguishable as objection had been raised in the said case at the stage of execution itself. As a matter of fact, if objection would have been raised by Defendant No. 1 during pendency of the final decree proceeding, steps could have been immediately taken by the Plaintiff for impleading those persons. Admittedly, Defendant No. 1 is also a co-heir of Defendant No. 2. along with the two daughters who had not been impleaded. Since one of the heirs is already on record, it can be said that there was substantial representation of the estate. Thus, in either view of the matter, the question now raised by the Appellant is of no substance. Besides, it is doubtful as to whether such a question can be raised by Defendant No. 1. The invalidity of the decree on the ground of non-substitution possibly could have been raised by the two daughters and not by the present Appellant. In this connection the decision of this Court in O.J. C. No. 6771 of 1997 dated 21-11-1997 in the case of Gobinda Chandra Tripathy and Anr. v. Ram Chandra Tripathy and Ors. may be seen. 10. The learned Counsel for the Appellant challenged the question of valuation fixed by the Commissioner. According to him the valuation should have been much lower. v. Ram Chandra Tripathy and Ors. may be seen. 10. The learned Counsel for the Appellant challenged the question of valuation fixed by the Commissioner. According to him the valuation should have been much lower. The learned Counsel appearing for Plaintiff-respondent on the other hand, submitted that the valuation has been fixed considering the date of filing of the suit to be the relevant date. He has submitted that the valuation should have been fixed on the date of determination of the valuation by.the Commissioner. So far as this submission of the Respondent is concerned, that need not be decided in this appeal as Plaintiff-respondent No. 1 has not challenged that part of the decree relating to valuation by filing independent appeal or cross-objection. The contention raised by the counsel for the Appellant relating to valuation is also without substance. It must be remembered that Defendants 1 and 2 had earlier raised the question of valuation when the suit had been filed before the Munsif and their such objection was accepted on a finding that the valuation of the land was Rs. 5.000/- per Gunth. Since the valuation claimed by them had been accepted by the trial court and the plaint had to be returned and refiled by the Plaintiff in the.Court of the Subordinate Judge the Defendants are estopped from raising a contention now that the valuation was much less. Besides, the materials on record also do not indicate that the finding of the Commissioner as accepted by the trial court is otherwise illegal. 11. For the aforesaid reasons, I do not find any merit in this appeal, which is accordingly dismissed with costs. Hearing fee is assessed at Rs. 500/- Appeal dismissed. Final Result : Dismissed