ORDER: This revision is directed against the order dated 26.10.2007, passed in C.F.R.No.3902 of 2007 on the file of the Court of the District Judge, Mahabubnagar, whereby the learned District Judge refused to entertain the appeal filed by the petitioners under Section 96 of the Code of Civil Procedure, 1908 (CPC), seeking to set aside the decree and judgment dated 01.09.1996 passed in O.S.No.4 of 1996 on the file of the Court of the Junior Civil Judge, Shadnagar. Before adverting to the question involved in this revision, it is necessary to notice the factual matrix obtaining herein. The father of the respondents herein, by name Rangaiah, instituted O.S.No.4 of 1996 before the learned Junior Civil Judge at Shadnagar against the father of petitioners herein, by name Saddula Narayana, for recovery of possession of the suit property. As the said Narayana did not contest the suit, he was set ex parte and thereafter, an ex parte decree was passed on 01.09.1996. As the petitioners allegedly did not have knowledge about the said ex parte decree, and there was threat of their dispossession by the respondents, they filed O.S.No.104 of 2002 before the learned Senior Civil Judge, Mahabubnagar. During the pendency of the suit, it came to light that there was an ex parte decree passed against their father on 01.09.1996. Therefore, coming to know of the said fact, they filed an appeal under Section 96 CPC before the learned District Judge, Mahabubnagar. However, the appellate Court dismissed the said appeal on 21.09.2007 with the following objections: 1) It should be stated as to how the appellants are the third parties when they are legal representatives of the defendant Saddula Narayana. 2) The ex parte decree has been passed on 01.10.1996, the petitioners/appellants to state as to why steps were not taken to set aside the said decree. 3) It should be stated as to how the appeal is maintainable when the suit O.S.No.104 of 2002 is pending on the file of the Senior Civil Judge's Court, Mahabubnagar in respect of the same schedule property. Answering the said objections, petitioners resubmitted the appeal on 04.10.2007 stating that they being the legal representatives of Saddula Narayana (defendant in O.S.No.4 of 1996) are entitled to prefer the appeal. Answering the said objections, petitioners resubmitted the appeal on 04.10.2007 stating that they being the legal representatives of Saddula Narayana (defendant in O.S.No.4 of 1996) are entitled to prefer the appeal. They also further stated that they came to know of the ex parte decree only pursuant to the notice in the execution proceedings were served on them on 06.09.2007 and therefore, appeal is within the period of limitation from the date of knowledge. However, disagreeing with said contentions put forth by the petitioners, learned District Judge rejected the appeal on 26.10.2007. Hence, this revision. Learned counsel for the petitioners, Sri K.Govardhan Reddy, strenuously contended before this Court that petitioners can maintain an appeal under Section 96 CPC as they are the interested persons and children of late Saddula Narayana. It is his further contention that the ex parte decree passed on 01.09.1996 against the father of the petitioners is against their interest and as such, they are the aggrieved persons and entitled to file an appeal under Section 96 CPC. In this context, the learned counsel has drawn my attention to the judgments in Radha Bai v. Banka Chinnayya1, State of Punjab v. Amar Singh2, Balakrishna Das Agarwal v. Smt.Radha Devi3and Baldev Singh v. Surinder Mohan Sharma4. On the other hand, Sri J.Suresh Babu, learned counsel for the respondents vehemently opposed the said contentions and submitted that the Court below is perfectly justified in rejecting the appeal, as it is filed beyond the period of limitation and is not supported by any application for condonation of delay. It is his further submission that petitioners cannot maintain an appeal under Section 96 CPC, having regard proviso under Order IX Rule 13 CPC, which enables them to file an application to set aside the ex parte decree dated 01.09.1996. He contended that when petitioners claim to be the legal representatives of the respondents and when there is a provision for setting aside the ex parte decree under Order IX Rule 13 CPC, their appeal under Section 96 CPC as third parties and interested persons is not maintainable. In this context, the learned counsel has drawn my attention to the judgments of the Supreme Court in State of M.P. v. Pradeep Kumar5, and Ragho Singh v. Mohan Singh6. In the light of the controversy, it is necessary for this Court to refer to Order IX Rule 13 CPC. In this context, the learned counsel has drawn my attention to the judgments of the Supreme Court in State of M.P. v. Pradeep Kumar5, and Ragho Singh v. Mohan Singh6. In the light of the controversy, it is necessary for this Court to refer to Order IX Rule 13 CPC. Order IX CPC deals with appearance of parties and consequence of non-appearance and Rule 13 deals with setting aside the ex parte decree passed against the defendants. It is apt to extract Rule 13 of Order IX CPC, and it is thus: "13. Setting aside decree ex parte against defendants.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set aside it; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. Explanation - Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree." From the above provision of law and also from the fact that petitioners are none other than the legal representatives of deceased Saddula Narayana, it is clear that they can file an application to set aside the ex parte decree dated 01.09.1996. But from a perusal of the words used in Section 96 CPC, which were interpreted by the Courts, this Court is of the view that it is not necessary for the petitioners to file an application under Order IX Rule 13 CPC to set aside the ex parte decree, and they can file an appeal with the leave of the Court. Part VII CPC deals with appeals and according to Section 96 CPC, an appeal shall lie from any original decree. The said provision of law reads as under: "96. Appeal from original decree.- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount of value of the subject matter of the original suit does not exceed (ten thousand rupees)." So, as per Section 96 CPC when there is a decree passed by any competent Court exercising original jurisdiction, an appeal shall lie. Nowhere it is stated in the said provision of law that only the affected party in the suit and none else shall prefer such an appeal. Ordinary rule is that only a party to a suit adversely affected by the decree or any of his representatives in interest may file an appeal. However, if a person can establish before the Court that he would be affected by the judgment, he may prefer an appeal with the leave of the appellate Court. Referring to various judgments on this aspect, a full bench of this Court in Radha Bai v. Banka Chinnayya (1 supra) held that third parties to the suit proceedings can definitely maintain an appeal with the leave of the Court. Referring to various judgments on this aspect, a full bench of this Court in Radha Bai v. Banka Chinnayya (1 supra) held that third parties to the suit proceedings can definitely maintain an appeal with the leave of the Court. It is necessary to refer to the relevant portion in the said judgment, which is as under: " Adverting to the test to be applied in the matter of granting such a leave, Rajamannar, Chief Justice, observed as follows:- "Now what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceeding, would be bound by the decree or judgment in that proceedings and who would be precluded from attacking its correctness in other proceedings." So far as the High Court of Andhra Pradesh is concerned, there is a decision of the Full Bench which directly deals with this point. In Pulayya v. Nagabhushanam, 1961 Andh LT 736 = (AIR 1962 Andh Pra 140), the learned Chief Justice, speaking for the Court after a full and detailed examination of the question in the context of decided cases, agreed with the statement of the law contained in AIR 1953 Mad 485 , that a person, who was not an eo nomine party to a suit or proceeding, may file an appeal, if he is aggrieved, with the lave of the Court. In regard to the test to be applied in granting such a leave, the learned Chief Justice followed almost the same test propounded by Rajamanmnar, Chief Justice in AIR 1953 Mad 485 viz., that the leave should be granted to a person to file an appeal even though he was not an eo nomine party to the suit or proceeding, if he is bound by the decree or judgment in the proceeding in question. We are in respectful agreement with the view taken by Chandra Reddy, Chief Justice, in 1961 Andh LT 736 = (AIR 1962 Andh Pra 140). We are in respectful agreement with the view taken by Chandra Reddy, Chief Justice, in 1961 Andh LT 736 = (AIR 1962 Andh Pra 140). We may refer in this connection to a decision of the Mysore High Court in Shivaraya V. Siddamma, AIR 1968 Mys 127. That was a case arising out of the Hyderabad Tenancy and Agricultural Lands Act. A person claiming to be a protected tenant of certain lands filed an application under Section 32 of the Hyderabad Tenancy and Agricultural Lands Act praying for possession impleading a person as the alleged landholder. After the order was made by the Tahsildar, respondent No.1, who was the brother's wife of respondent No.2, in that civil revision petition filed an appeal before the Deputy Commissioner stating that the applicant before the Tahsildar was not a protected tenant and that she was the real landholder. The Deputy Commissioner before whom the appeal was filed granted leave for the filing of the appeal and eventually set aside the order of the Tahsildar and remanded the case for fresh disposal. In a civil revision petition filed against the order of the Deputy Commissioner, the High Court of Mysore held that the grant of leave was justified in the circumstances. In this case, it should be borne in mind that the respondents 1 and 2 claim to be joint tenants with Pochaiah. They further claimed that they have been cultivating the lands in question both during the lifetime of Pochaiah and after his death as members of an undivided family. The tenancy certificate was issued in the name of Pochaiah. The expression "tenant" as defined in the Act means an asami shikmi who holds land on lease. The expression "asami shikmi" will take in not only the person in whose name the tenancy certificate is issued, but also others having interest in the tenancy. The second proviso to Section 19(1)(a) would also indicate that where the land is cultivated jointly by joint tenants or members of an undivided Hindu family, the surrender must be made by all such persons. That being so, could it be said that the respondents 1 and 2 are not entitled to file the appeal? They are certainly persons who are adversely affected by the order of the Tahsildar. That being so, could it be said that the respondents 1 and 2 are not entitled to file the appeal? They are certainly persons who are adversely affected by the order of the Tahsildar. They would have certainly been proper parties to be brought on record during the pendency of the application before the Tahsildar. In these circumstances, we hold that the order of the Collector granting leave to the respondents 1 and 2 to file the appeal is correct." All that Section 96 CPC prescribes is that an appeal shall lie from every decree. The said provision of law does not prescribe as to at whose instance such an appeal shall lie. However, it is fundamental in view of the very nature of things that an appeal should lie only at the instance of a person who may be aggrieved by the judgment sought to be appealed against. A party who would benefit from change in the judgment would have an appealable interest and the person filing an appeal must have a legal grievance against a decision, which had wrongfully deprived him of something or affects his title to something. As stated supra, petitioners are none other than the children of late Saddula Narayana, against whom a decree for recovery of possession was granted. So, it can definitely be said that petitioners are having legal grievance and as Section 96 CPC is not restricted only to those persons who are arrayed as parties in the suit, this Court is of the view that petitioners can definitely maintain an appeal with the leave of the appellate Court. The second aspect, which is to be considered, is whether such an appeal can be filed at any time beyond the period of limitation without filing an application to condone the delay. According to the learned counsel for the petitioner, petitioners did not have knowledge about institution of the suit, ex parte decree, etc., and it is only when the respondents herein have taken such a plea in the written statement filed by them in O.S.No.104 of 2002, they came to know of the said fact and immediately thereafter they filed the present appeal with a leave petition and as such, the question of filing an application under Section 5 of the Limitation Act does not arise. This Court cannot subscribe such an argument advanced by the learned counsel for the petitioners for the reason that Rule 3A of Order XLI CPC mandates that when an appeal is presented after expiry of the period of limitation prescribed therefor, it shall be accompanied by an application supported by an affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. In Fact, Rule 3A was brought into existence by amendment in Act No.104 of 1976, which came into force with effect from 01.02.1977. With the introduction of the said provision of law, it is clear that even if it is an appeal with the leave of the Court, still the appellants are required to file an application for condonation of delay, if any. In State of MP v Pradeep Kumar7, the Supreme Court while dealing with the same aspect of filing the appeal without an application for condonation of delay, held as follows: "What is the consequence if such an appeal is not accompanied by an application mentioned in sub-rule (1) of Rule 3-A ? It must be noted that the Code indicates in the immediately proceeding Rule that the consequence of not complying with the requirements in Rule 1 would include rejection of the memorandum of appeal. Even so, another option is given to the Court by the said Rule and that is to return the memorandum of appeal to the appellant for amending it within a specified time or then and there. It is to be noted that there is no such rule prescribing for rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed in such appeal without an accompanying application to condone delay the consequence cannot be fatal. The court can regard in such a case that there was no valid presentation of the appeal. In turn, it means that if the appellant subsequently files an application to condone the delay before the appeal is rejected the same should be taken up along with the already filed memorandum of appeal. Only then the court can treat the appeal as lawfully presented. In turn, it means that if the appellant subsequently files an application to condone the delay before the appeal is rejected the same should be taken up along with the already filed memorandum of appeal. Only then the court can treat the appeal as lawfully presented. There is nothing wrong if the court returns the memorandum of appeal (which was not accompanied by an application explaining the delay) as defective. Such defect can be cured by the party concerned and present the appeal without further delay. No doubt sub-rule (1) of Rule 3-A has used the word "shall". It was contended that employment of the word "shall" would clearly indicate that the requirement is peremptory in tone. But such peremptoriness does not foreclose a chance for the appellant to rectify the mistake, either on his own or being pointed out by the Court. The word "shall" in the context need be interpreted as an obligation cast on the appellant. Why should a more restrictive interpretation be placed on the sub-rule? The Rule cannot be interpreted very harshly and make the non-compliance punitive to an appellant. It can happen that due to some mistake or lapse an appellant may omit to file the application (explaining the delay) along with the appeal. It is true that the pristine maxim vigilantibus non dormientibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism "to err is human" is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the court should not be one of the finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine. .. The object of enacting Rule 3-A in Order 41 of the Code seems to be twofold. First is, to inform the appellant himself who filed a time-barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. .. The object of enacting Rule 3-A in Order 41 of the Code seems to be twofold. First is, to inform the appellant himself who filed a time-barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. Second is, to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the court has to deal with application for condonation of delay as a condition precedent. Barring the above objects, we cannot find out from the Rule that it is intended to operate as unremediably or irredeemably fatal against the appellant if the memorandum is not accompanied by any such application at the first instance. In our view, the deficiency is a curable defect, and if the required application is filed subsequently the appeal can be treated as presented in accordance with the requirement contained in Rule 3-A Order 41 of the Code." Of course, in Ragho Singh's case (6 supra) the Supreme Court held that where the appeal filed before the Additional Collector was beyond the period of limitation, it was liable to be dismissed in the absence of any application under Section 5 of the Limitation Act for condoning the delay. The ratio laid down in the said case applies to the case on hand also. The facts in that case are that an appeal was filed before the Additional Collector beyond the period of limitation and the appeal was not supported by any application to condone the delay and when the Additional Collector allowed the said appeal, the aggrieved party i.e, the respondent before the Additional Collector, approached the Supreme Court and filed an appeal and the Supreme Court has taken the view that Additional Collector was not justified in entertaining the appeal when it was not supported by an application. The facts herein are different. Here, the learned District Judge did not even number the appeal and simply rejected the appeal stating that it cannot be entertained for the reason that it is not supported by an application to condone the delay, as provided for under Rule 3A of Order XLI CPC. Though an appeal with the leave of the Court is maintainable under Section 96 CPC, such an appeal with leave cannot be entertained without seeking condonation of delay. Though an appeal with the leave of the Court is maintainable under Section 96 CPC, such an appeal with leave cannot be entertained without seeking condonation of delay. As the appeal preferred by the petitioners herein was simply rejected, this Court is of the view that the appeal can as well be represented by the petitioners with an application under Rule 3A of Order XLI CPC. Accordingly, the Civil Revision Petition is allowed setting aside the order dated 26.10.2007 passed in C.F.R.No.3902 of 2007 by the learned District Judge, Mahabubnagar. Petitioners are hereby directed to represent the appeal with leave petition along with an application under Rule 3A of Order XLI CPC, and on such representation, the Court below shall entertain the same and decide the application under Rule 3A of Order XLI CPC on merits, uninfluenced by any of the observations made by this Court in this revision.