Surjeet Ghosh vs M/S Nund & Samont Company
2023 Latest Caselaw 2326 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               C. R. No. 8 of 2022
     Surjeet Ghosh                                        ...     ...     Petitioner
                               Versus
     M/s Nund & Samont Company
     Private Limited & Ors.                    ...    ...     Respondents
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CORAM : HON'BLE DR. JUSTICE S.N. PATHAK

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For the Petitioner : Mr. Prashant Kumar Shrivastava, Adv.

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5/ 14.07.2023 Heard learned counsel for the petitioner.

The petitioner is aggrieved by the order of Court below by which the restoration application filed by the respondents have been allowed.

Relying the judgment rendered in the case of Damodaran Pillai & Ors. Vs. South Indian Bank Ltd., reported in (2005) 7 SCC 300 Learned counsel for the petitioner submits that in view of sub-rule (3) of Rule 106 of Order 21 of the Code of Civil Procedure Code, a restoration application is required to be filed within 30 days from the date of passing of the order and not thereafter and for the said purpose, Section 5 of the Limitation Act is not applicable and thereby, the learned Court below without appreciation of this aspect, illegally and arbitrary, allowed the restoration application.

In the facts of this case, let notice be issued to the respondents in the admission for which requisites etc. must be filed within three weeks through registered cover with A/D, as also under ordinary process. I.A. No. 4221 of 2022 This interlocutory application has been filed under Order 41 Rule 5 read with Section 151 of the Code of Civil Procedure for stay of Execution Case No. 02/2008.

In view of the submissions advanced by the learned counsel for the petitioner, it appears that prime facie case is made out and balance of convenience also lies in favour of the petitioner.

Further proceeding in Execution Case No. 02/2008 pending in the Court of Sub-Judge-IV at Koderma, shall remain stayed.

The aforesaid interlocutory application stands allowed.

(Dr. S. N. Pathak, J.) R.Kr.