JUDGMENT : Sanjay K. Agrawal, J. The substantial question of law formulated and to be answered by this Court in the defendants' second appeal is as under:- "Whether the lower appellate Court was justified in dismissing the appeal on the ground of limitation holding that no affidavit has been filed under Order 41, Rule 3A (1) of the Code of Civil Procedure ?" [For sake of convenience, the parties would be referred hereinafter as per their status shown in the plaint before the trial Court] 2. In a suit filed by respondent No.1/plaintiff, the trial Court by its judgment & decree dated 28.01.2015 passed in Civil Suit No.14-A/2010, decreed suit granting declaration of title, partition, possession and permanent injunction in favour of the respondent No.1/plaintiff. 3. Feeling aggrieved & dissatisfied with the judgment & decree of the trial Court, appellants/defendants preferred first appeal before the first appellate Court on 29.04.2015 along with application for condonation of delay in preferring the appeal as the appeal was admittedly barred by 51 days, which was duly supported by affidavit. 4. The first appellate Court, by its impugned order dated 22.12.2015, dismissed the appeal holding that appellant/plaintiff has not filed any affidavit as required under sub Rule 1 of Rule 3(A) of the Rule 41 of the CPC. 5. Questioning the legality, propriety and correctness of the order passed by the learned first appellate Court, second appeal under Section 100 of the CPC has been filed by the appellants/defendants and the substantial question of law has been framed and incorporated in the opening paragraph of the judgment. 6. Shri. Raghvendra Pradhan, learned counsel appearing for the appellants/defendants would submit that the first appellate Court is absolutely unjustified in dismissing the appeal holding that no affidavit in terms of sub Rule 1 of Rule 3(A) of Rule 41 of the CPC has been filed ignoring the fact that application under Section 5 of the Limitation Act is duly supported by affidavit and, as such, the order passed by the learned first appellate court is absolutely perverse and contrary to the record and, therefore, the same is liable to be set aside. 7. Mr. 7. Mr. Shivendu Pandya, counsel for the respondent No.1/plaintiff would support the judgment & decree of the first appellate court and would submit that no such affidavit as required under sub Rule 1 of Rule 3(A) of Rule 41 of the CPC was filed by the respondent No.1/plaintiff and, therefore, the appeal has rightly been dismissed by the first appellate Court. 8. I have heard learned counsel appearing for the parties and also considered their rival submissions made therein and also gone through the record with utmost circumspection. 9. In the matter of State of M.P. And another v. Pradeep Kumar and another, (2000) 7 SCC 372 their Lordships of the Supreme Court have provided consequence of not filing the affidavit along with appeal by holding as under:- "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 preceding Rule that the consequence of not complying with the requirement in Rule I 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 any 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. 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." 10. 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." 10. In the matter of State of M.P. And another v. Pradeep Kumar and another (supra), their Lordships of the Supreme Court have also highlighted the object of enacting Rule 3-A in Order 41 of the Code and held that deficiency is a curable defect and held as under:- "19. 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 is 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. " 11. Admittedly, the first appeal was filed along with application for condonation of delay under Section 5 of the Limitation Act, which was duly supported by affidavit. 12. Learned District Judge has recorded the order sheet dated 30.04.2015, which reads as under:- ^^30-04-2015% izdj.k lsUV~y QkbZfyax flLVe cykSnkcktkj] ekuuh; ftyk ,oa l= U;k;k/kh'k cykSnkcktkj }kjk varj.k ij izkIrA izdj.k O;ogkj vihy /kkjk vUrxZr 96 O;0iz0 la0 440 :0 U;k; 'kqYd pLik] vkns'k 41 fu;e 5 O;0iz0 la0 dk e; 'kiFk i= vkosnu] vkosnu vUrxZr /kkjk 05 E;kn vf/kfu;e e; 'kiFk i=] v/khuLFk U;k;ky; dk fu.kZ; dh lR;izfrfyfi lfgr Jh ;ksxs'k ukenso vf/koDrk dk odkyrukek ¼dqy 34 ist½ is'k gSA vihykFkhZ }kjk Jh ;ksxs'k ukenso vf/koDrkA fu"iknu fyfid vkxkeh dk;Zfnol esa tkap izfrosnu is'k djsaA izdj.k okLrs tkap izfrosnu 02-05-2015A^^ 13. A perusal of the order sheet would show that the first appeal was filed by appellants along with application under Section 5 of the Limitation Act, which was supported by affidavit. 14. At this stage, it would be advantageous to notice the provisions of Order 41, Rule 3 (A)(1) of the CPC, which reads as under:- "Order 41, Rule 3A (1) of the CPC: Application for condonation of delay.- (1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he has sufficient cause for not preferring the appeal within such period." 15. A careful perusal of the aforesaid provision would show that when an appeal is presented after the expiry of the period of limitation specified therefor, it shall accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he has sufficient cause for not preferring the appeal within such period. 16. In the case in hand, the appeal was filed after period of limitation along with application for condonation of delay; and it appears from the record that the said application was duly supported by affidavit. 17. Once affidavit in support of application under Section 5 of the Limitation Act is filed, requirement of Order 41, Rule 3A (1) stands satisfied and that application can be said to be the application under Order 41, Rule 3A (1) of the CPC. Therefore, the learned First Additional District Judge is absolutely unjustified in holding that there is no such application filed in terms of Order 41, Rule 3A (1) of the CPC. 18. As a fallout and consequence of the aforesaid discussion, impugned order dated 22.12.2015 is hereby set aside. The application for condonation of delay in filing the appeal is restored to the original file of First Additional District Judge, Baloda Bazar, District Balodabazar-Bhatapara for hearing and disposal; and First appellate Court is directed to hear and decide the application for condonation of delay in filing the first appeal on merits within a period of 30 days from the date of receipt of copy of this order and thereafter proceeded in accordance with law.