JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. The present application under section 5 of the Limitation Act is preferred to condone delay of 1988 days which has occurred in filing the Appeal from Order to challenge the order dated 4th December 2007 passed by the learned Additional Senior Civil judge, Ahmedabad (Rural) at Mirzapur, Ahmedabad below Exhibit 5 in Special Civil Suit No. 399 of 2007. 2. The facts leading to filing of the present application has a checkered history. Respondent No. 1 herein filed Special Civil Suit No. 399 of 2007 in the court of the learned Principal Senior Civil judge, Ahmedabad (Rural) for partition, declaration and permanent injunction against respondents No. 2 to 7 herein to restrain them from transferring, assigning or alienating the suit property bearing Survey No. 310/1 and 2, 311/1/2 and 319 paiki 1 and 2 situated at mouje Sola inter alia on the ground that respondent No. 2 herein has got 50% share in the suit property on the basis of the registered will executed by Manguben, widow of Ramabhai Chhaganbhai Patel who was his grandmother. The executor of the Will, deceased Manguben had nominated the present applicant as the executant of the registered Will. Under the will, properties are bequeathed to Respondent No. 1 and Respondent No. 3. Respondent No. 2 herein had initially filed the said suit without joining the present applicant either as a co-plaintiff or as a pro forma defendant. The applicant, therefore, moved application exhibit 39 in the trial court for being impleaded as a co-plaintiff which came to be allowed and accordingly the applicants became co-plaintiff i.e. plaintiff No. 2 in the suit. The learned 4th Additional Senior Civil Judge, Ahmedabad (Rural), after bi parte hearing passed an order dated 5th December 2007 rejecting Exhibit 5 injunction application. 3. Respondent No. 2 who was plaintiff No. 1 in the suit challenged the aforesaid order in this Court by filing Appeal from Order No. 411 of 2007 without impleading the present applicant either as a co-appellant or pro forma respondent. During the pendency of the said appeal the present applicant preferred Civil Application No. 6928 of 2011 for being joined as a party in the appeal. Before this application of the applicant could be heard and decided, Respondent No. 2 filed affidavit on 26.09.2012 to withdraw the appeal unconditionally. During the pendency of the said appeal the present applicant preferred Civil Application No. 6928 of 2011 for being joined as a party in the appeal. Before this application of the applicant could be heard and decided, Respondent No. 2 filed affidavit on 26.09.2012 to withdraw the appeal unconditionally. This court by order dated 9th May 2013 permitted respondent No. 1 to withdraw the appeal from order and rejected the application for impleadment of the present applicant inter alia observing that the present applicant can file separate appeal if law permits him to do so. Any appeal by the present applicant would be beyond limitation and would have to be accompanied by an application for condonation of delay. Instead of following such course, the present applicant preferred to file an impleadment application to overcome the delay and other issues which would arise in the appeal that may be filed by him. The applicant challenged this order in the Supreme Court by filing SLP (Civil) No. 11082 of 2013 came to be dismissed. The applicant has, therefore, preferred an independent Appeal from Order under Order 43 Rule 1(r) of the Civil Procedure Code, 1908 to challenge order dated 4th December, 2007 of the learned trial judge passed below exhibit 5 in Special Civil Suit No. 399 of 2013. Since there is a delay of 1988 days in preferring the appeal from order, the present application is filed to condone the delay. 4. I have heard Mr. R.R. Marshall, learned Senior Counsel, assisted by Mr. Tattvam Patel, learned advocate for the applicant, Mr. R.S. Sanjanwala, learned Senior Counsel, assisted by Mr. Manav Mehta, learned advocate for respondent No. 2 to 4 and Mr. Dhaval D Vyas, learned advocate for respondent No. 1. Though served, there is no appearance on behalf of respondent No. 5 to 8. 5. Mr. Marshall, learned Senior Counsel for the applicant has vehemently submitted that the applicant being the executant of the Will of late Manjuben is under an obligation to see that the property is distributed amongst the beneficiaries i.e. Respondent No. 1 and Respondent No. 3 as per the wish of of the executor. 5. Mr. Marshall, learned Senior Counsel for the applicant has vehemently submitted that the applicant being the executant of the Will of late Manjuben is under an obligation to see that the property is distributed amongst the beneficiaries i.e. Respondent No. 1 and Respondent No. 3 as per the wish of of the executor. He further submits that the earlier appeal from order was filed without joining the present applicant either as appellant No. 2 or as a formal respondent, but as the impugned order of the learned trial judge was under consideration of this court at the instance of respondent No. 1 in Appeal from Order No. 441 of 2007 and the statement of learned advocate for the other side was recorded to the effect that they would maintain status quo, there was no occasion or cause for the present applicant to initiate separate proceedings to challenge the impugned order. He further urges that this court, vide order dated 9th May 2013, while permitting respondent No. 1 to withdraw the appeal and dismissing the application of the present applicant to implead him as a party has given liberty to the applicant to initiate independent proceedings to challenge the impugned order. Therefore, the appeal from order is preferred. It is his further submission that under section 14 of the Limitation Act the time spent by the applicant in preferring an application for impleadment in earlier appeal from order required to be excluded from counting the limitation period for preferring the independent appeal from order to challenge the impugned order. He would also submit that this Court has by order dated 9th May 2013 has observed that the present applicant can file a separate appeal if law permits with delay condonation application. Therefore, the present application is preferred. He, therefore, urges that the delay may be condoned. 6. Mr. Dhaval Vyas, learned respondent No. 1, who is the beneficiary of the Will of late Manguben submits that this Court has observed in order dated 9th May 2013 that the respondent No. 1 has not committed fraud by not impleading the present applicant as one of the appellants in earlier appeal from order. He would further submit that respondent No. 1 would have impleaded the present applicant as party respondent if he wanted to implead him as party in the earlier appeal from order. 7. Mr. He would further submit that respondent No. 1 would have impleaded the present applicant as party respondent if he wanted to implead him as party in the earlier appeal from order. 7. Mr. Rasesh Sanjanwalla, learned Senior Counsel for respondents Nos. 2 to 4 has stoutly opposed this application and further submitted that the application of the applicant for being joined in earlier appeal from order is rejected on merits and therefore, the independent right of the applicant to file separate appeal is foreclosed. It is his further submission that the applicant consciously chose the remedy of being impleaded in the earlier appeal from order and failed and therefore, independent appeal from order at the instance of the applicant is not maintainable. He would further submit that the doctrine of estoppel is attracted in the present case once the remedy chosen by the applicant is unsuccessfully exhausted and therefore, the applicant is now estopped from resorting to another remedy of filing appeal from order to challenge the selfsame order of the learned trial court. In support of this submission, he has placed reliance on the decision of the Supreme Court in the case of National Insurance Company Limited v. Mastan & Another, (2006) 2 SCC 641 wherein a proposition of law is laid down to the effect that the doctrine of election postulates that when two remedies are available for the same cause, the appellant can elect either of one but not both. He, therefore, submits that when the applicant has chosen to prefer an application for impleadment in the earlier appeal from order to challenge the selfsame order unsuccessfully, now he cannot be permitted to resort to another remedy. According to his submission, section 14 of the Limitation Act has no application in the present case as it is not the case of the applicant that he was bona fide prosecuting the remedy in the wrong forum. Therefore, it cannot be contended that cause of filing of the appeal from order arose only upon rejection of the SLP by the Hon'ble Supreme Court which the applicant had filed to challenge the order of this Court in earlier appeal from order. Therefore, it cannot be contended that cause of filing of the appeal from order arose only upon rejection of the SLP by the Hon'ble Supreme Court which the applicant had filed to challenge the order of this Court in earlier appeal from order. It is his further contention that the applicant has shown utterly negligent attitude as he did not act diligent to challenge the order of the learned trial court and in view of the decision of the Supreme Court in the case of Baswaraj & Anr. v. The Special Land Acquisition Officer, in Civil Appeal No. 6974 of 2013 decided on 22.02.2013 delay cannot be condoned. Hence the present application may be dismissed. 8. The undisputed fact is that respondent No. 1 had filed Civil Suit No. 399 of 2007 against respondents Nos. 2 to 8 herein for partition and permanent injunction of the suit property which, were bequeathed to him and respondent No. 3 by late Manguben by registered will. It is also not in dispute that in the said registered will the present applicant is nominated as executed. It appears that an ex parte ad interim injunction was granted by the trial court when the respondent no1 filed the suit along with exhibit 5 application. Initially, respondent No. 1 was the sole plaintiff, but, later on, upon the application exhibit 39 the applicant came to be impleaded as plaintiff No. 2. The main objection on the part of the respondents against condonation of delay is that the applicant had two remedies available to challenge the impugned order of the learned trial judge and he resorted to the first remedy of impleadment as a party in an earlier appeal from order preferred by respondent No. 2. Now, having failed in the said remedy up to the Honourable Supreme Court he cannot be permitted to resort to another remedy of filing an appeal in view of doctrine of election and doctrine of estoppel. In the first place, this Court will have to examine whether the application preferred by the applicant for impleadment in an earlier appeal from order can be said to be one of the remedies available to the applicant to challenge the order of the learned trial judge. In the first place, this Court will have to examine whether the application preferred by the applicant for impleadment in an earlier appeal from order can be said to be one of the remedies available to the applicant to challenge the order of the learned trial judge. The reading of the order of this Court dated 9th May 2013 in the earlier appeal from order makes it vividly clear that the court has not examined the merits of the appeal from order because respondent No. 1 who had preferred the appeal filed an affidavit to withdraw it after the applicant had preferred an application for impleadment. This Court has declined the application of the applicant for impleadment on the ground that rights of the applicant in his capacity as an executant of the will of late Manguben is not prejudicially affected as the suit was still pending wherein the applicant can agitate his rights. It further appears from the earlier order that the applicant was not impleaded as a party because, he had an independent right of preferring the appeal being a co-plaintiff in the suit, but as he had not preferred the appeal and chose to file an application for impleadment as this court felt it was owing to overcome the delay and other issues in the appeal, which may arise if the applicant prefers an independent appeal. It, therefore, appears that the applicant was denied impleadment in the earlier appeal from order as the Court felt that the applicant was trying to enter in the appeal from the back-door to avoid explaining the delay which has occurred in approaching this court on his part to challenge the impugned order. At this stage, the perusal of the record reveals that the initial objection raised by respondents No. 2 to 8 in the suit was that respondent No. 1 being a beneficiary of the will of Manguben has no right to institute a suit and it is the executant of the Will i.e. the applicant alone who can file the suit under the provisions of the Indian Succession Act, 1956. 9. One cannot be oblivious of the undisputed fact that earlier appeal was filed by Respondent No. 1 behind the back of the applicant though he is plaintiff No. 2. 9. One cannot be oblivious of the undisputed fact that earlier appeal was filed by Respondent No. 1 behind the back of the applicant though he is plaintiff No. 2. It does appear that the applicant was aware of the earlier appeal, but did not take steps to get himself impleaded. But, that itself would not cause an impediment in seeking condonation of delay because, admittedly there was a statement on behalf of contesting respondents that they shall not alienate suit property. Therefore, the applicant has taken a stand in the present application that he did not prefer a separate appeal to challenge the impugned order as the appeal from order preferred by the appellant was under consideration of the court. It is only when the present applicant realised that respondent No. 1 had submitted withdrawal pursis in the lower court for the withdrawal of the suit and vide order dated 17th June 2011 the Court permitted withdrawal of the civil suit qua respondent No. 1, he felt that the appeal from order would also be withdrawn by respondent No. 1. He, therefore, preferred an application for impleadment in the appeal, which was not entertained by this Court. Attempt on part of the applicant to get himself impleaded was to stall the withdrawal of the appeal so that he being plaintiff No. 2 in suit can pursue the appeal on merit. I am, therefore, of the view that application for impleadment in earlier appeal cannot be said to be one of the remedies to challenge the impugned order. The only remedy to challenge the impugned order is to prefer an appeal under Order 43 Rule 1(r) of the Code. The ratio expounded by the Apex Court in the case of National Insurance Company Limited v. Mastan & Another (supra) is not applicable in the facts of the present application. The 'doctrine of election' is a branch of 'rule of estoppel', in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. It transpires that the applicant has not shown indolent or cavalier attitude being the executant of the will of late Manguben. It further appears that all throughout he was diligent in taking active part in the suit filed by respondent No. 1-Parth Pravinbhai Patel, to see that the property, which is the subject matter of the Will is not wasted or misappropriated or gobbled up by the persons other than the beneficiaries. The conduct of the applicant does not indicate that he was negligent or lacking bona fides. Therefore, the proposition of law expounded by the Hon'ble Supreme Court in the case of Baswaraj & Anr. v. The Special Land Acquisition Officer, (supra) cannot help the respondents in submitting that the present application deserves dismissal on account of negligence and lack of bona fides on the part of the applicant. There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalize injustice but are obliged to remove injustice. The term "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 10. The applicant is the executant of the will of late Manguben and therefore it is his duty to see that the property is distributed amongst the beneficiaries as per the wish of the executor of the Will. Therefore, at least, the applicant deserves a chance to file an appeal to challenge the impugned order of the learned trial judge. I am, therefore, of the view that the delay, though substantial, needs to be condoned in the peculiar facts of this case. 11. For the foregoing reasons, the present application is allowed. Delay of 1988 days which has occurred in filing the Appeal from Order to challenge the order dated 4th December 2007 passed by the learned Additional Senior Civil judge, Ahmedabad (Rural) at Mirzapur below Exhibit 5 application in Special Civil Suit No. 399 of 2007 is condoned. Rule is made absolute. Registry is directed to list main appeal from order for admissional hearing on 6th September, 2016.