Madhya Pradesh High Court
Ramcharan vs Late Nandlal S/O Late Munshilal ... on 18 November, 2021
Author: Vishal Dhagat
1 MCC-2777-2019
The High Court Of Madhya Pradesh
MCC No. 2777 of 2019
(RAMCHARAN Vs LATE NANDLAL S/O LATE MUNSHILAL (DEAD) LRS SMT. MULIA BAI (DEAD) SMT.
NARBADI BAI AND OTHERS)
10
Jabalpur, Dated : 18-11-2021
Shri S. Shrivastava, learned counsel for the applicant.
Shri Ishteyaq Husain, learned counsel for the respondents.
Applicant has filed this MCC for restoration of SA No.665/2002 and
also filed IA No.13734/2019 for condonation of delay.
It is submitted by counsel for the applicant that second appeal was
dismissed on 16.07.2015 and party was not aware of the same. Respondents
had filed an application for execution of judgment and decree. When
applicant received notice of execution they learned about dismissal of his
case in the High Court. It is further submitted by him that reasons for delay in
filing of MCC was bonafide as party was not aware, therefore, MCC could
not be filed immediately. It is further submitted that nobody could appear in
second appeal as name of counsel in cause list dated 16.07.2015 could not be
checked properly. Mistake was unintentional and bonafide in nature. In view
of aforesaid, counsel for applicant made a prayer for condonation of delay
and to allow MCC for restoration of second appeal.
Learned counsel appearing for respondents opposed the applications
for condonation of delay as well as restoration of second appeal. It is
submitted by him that applicant was aware of dismissal of his case even
before notice of execution was issued to the applicant. Said fact can be
gathered from the documents that notice was received by applicant on
19.12.2019 but MCC has been filed on 06.11.2019 which goes on to show
that applicant was aware that second appeal filed by appellant had already
been dismissed. He also submits that there is delay of more than four years in
filing of MCC. On this grounds, he made a prayer that application for
condonation of delay and MCC may be dismissed.
Signature Not
SAN
Verified Heard the counsel for applicant as well as respondents.
Digitally signed by
SHABANA ANSARI
Date: 2021.11.18
17:18:53 IST
2 MCC-2777-2019
Parties may not suffer due to the mistake of the counsel. It has been
stated that nobody could appear in second appeal as counsel could not check
his name in the cause list and therefore, matter has been dismissed in default.
It is prayed by counsel for applicant that in interest of justice one more
opportunity of hearing may be given and second appeal may be restored so
that applicant could argue his case before the Court.
In view of aforesaid, IA No.13734/2019 for condonation of delay in
filing MCC is allowed. Delay in filing MCC is hereby condoned.
Considering the aforesaid facts, MCC is allowed. SA No.665/2002 is
restored to its original number on payment of cost of Rs.15,000/- (Rs. Fifteen
Thousand Only) to respondents. Said money may be given to the counsel for
respondents and receipt of same be obtained from him and produced before
the Registry. On production of same, Registry shall restore SA No.665/2002
to its original number.
Counsel appearing for the parties submitted that execution of judgment
and decree has been done after dismissal of second appeal. In case of
restoration of second appeal, operation of stay order passed in second
appeal may be brought into effect.
Since execution has been done after dismissal of second appeal,
therefore, stay order will not come in the way of respondents.
Office is directed to place a copy of this order along with the deposit
slip in the restored second appeal.
The MCC is disposed of, accordingly.
(VISHAL DHAGAT)
JUDGE
shabana
Signature
SAN Not
Verified
Digitally signed by
SHABANA ANSARI
Date: 2021.11.18
17:18:53 IST
