Hasankha Bhikankha And Ors vs Hamidkhan Bhikankha Musalman And ...
2021 Latest Caselaw 13558 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR

                   Civil Application [CAO] No.504 of 2021
                                       in
                Civil Application [MCA] St.No.25103 of 2019
                                       in
                      Second Appeal No.623 of 2006 (D)
                     Hasankha Bhikhankha (Dead) through L.Rs. & others
                                           vs.
                         Hamidkhan Bhikankha Musalman & others
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Office notesc Office Memoranda ofmi
Coramc appearancesc Court's orders                             Court's or Judge's Orders
or directions and Registrar's orders.
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                           Shri N.S. Badhec Advocate fmior the Applicant/Appellant No.2.
                           Ms. Kshirsagar h/fmi Shri A.S. Mardikarc Senior Advocate fmior the
                           Respondents.


                                            CORAM    :   S.M. MODAK, J.

DATE : 21st SEPTEMBER, 2021.

The second appeal came to be dismissed afmiter expiry ofmi fmiour weeks fmirom 23/10/2018. The appellants were granted fmiour weeks' time on 10/02/2017 to remove office objections. There were two appellants. Appellant No.1 expired. Appellant No.2 moved an application fmior bringing the legal heirs ofmi appellant No.1. Afmiter permitting appellant No.2 to bring on record the legal heirs ofmi appellant No.1 on recordc power on their behalfmi was not fled. That was the office objection.

On this backgroundc the entire appeal came to be dismissed. In fmiactc the appeal ought to have been dismissed only against the legal heirs ofmi appellant No.1.

Now the legal heirs ofmi appellant No.1 have come fmiorward to prosecute the appeal and they along with appellant No.2 want restoration ofmi the appeal. There was a delay ofmi 356 days. The prayer is opposed

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on behalfmi ofmi the respondents. The present respondents have prefmierred Second Appeal No.266/2013 against another judgment in which the present appellants are the respondents.

As said abovec the appeal ofmi appellant No.2 ought not to have been dismissed. The legal heirs ofmi deceased-appellant No.1 have given reasons fmior restoration. I have perused both ofmi them. I fnd convincing reasons fmior restoration as well as fmior condonation ofmi delay. The appellants have already deposited Rs.500/- as directed by this Court in the order dated 10/02/2017. Hencec the fmiollowing order is passed :

i. Delay caused in prefmierring application fmior restoration ofmi appeal is condoned. ii. Second appeal is restored to the fle. iii. Learned Advocate Ms. Kshirsagar waives notice fmior all the respondents. iv. Both the civil applications are allowed and disposed ofmi accordingly.

Second Appeal No.623/2006:

Present appeal be fxed fmior fnal hearing. It is submitted that the parties in this appeal are also the parties in Second Appeal No.266/2013.

In view ofmi thatc Second Appeal No.266/2013 be tagged with this appeal and placed befmiore the Court on 12th Octoberc 2021.

JUDGE *sandesh