Sallan And Another vs Smt. Harnandi
2023 Latest Caselaw 7880 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 10
 
Case :- SECOND APPEAL DEFECTIVE No. - 287 of 2022
 
Appellant :- Sallan And Another
 
Respondent :- Smt. Harnandi
 
Counsel for Appellant :- Rupendra Kumar Mishra
 

 
Hon'ble Dinesh Pathak,J.

In Re: Civil Misc. Delay Condonation Application No. 1 of 2022 :-

As per endorsement made by the reporting section there is a delay of 138 days in filing the instant second appeal. As per office report dated 02.03.2023, notice issued to the sole respondent and as per reports submitted by the District Judge, Moradabad dated 24.02.2023, notice has been served through son of sole respondent. Service of notice upon the sole respondent is deemed to be sufficient. Cause for delay in filing the instant second appeal as mentioned in the affidavit filed in support of delay condonation application is sufficient and to the satisfaction of the Court.

There is no oppose to the delay condonation application.

As such, delay condonation application is allowed and the instant second appeal is treated to be filed within prescribed period of limitation as provided under the law.

Office is directed to allot regular number to the appeal.

Order on Appeal :-

Perusal of impugned judgment and decree dated 31.03.2023, which is under challenge, passed by the Addl. District Judge, Court No. 3, Moradabad reveals that matter has been remitted before the trial court for further proceedings. Under Order 43 (1)(u) of C.P.C. Second appeal against the remand order is not maintainable.

After due deliberations at length, counsel for the appellant has prayed to dismiss the instant appeal as withdrawn with liberty to avail the appropriate remedy as enunciated under Order 43 (1)(u) of C.P.C.

As such, instant second appeal is dismissed as withdrawn with liberty to the appellant to avail remedy under Order 43(1)(u) of C.P.C.

Office is directed to return the certified copy of the judgment and decree passed by the courts below to the counsel for the appellant after retaining it's photostat copy at the relevant place.

Order Date :- 17.3.2023

S.Ahmad