Saleem Khan vs Shyam Manohar
2021 Latest Caselaw 6453 MP

                                              1              M.C.C.No.2473/2018

               HIGH COURT OF MADHYA PRADESH
                            BENCH AT GWALIOR


                            :SINGLE BENCH:


          {HON'BLE SHRI JUSTICE ANAND PATHAK}


                             MCC NO.2473/2018

                          Saleem Khan and others
                                       Vs.
                        Shyam Manohar and others
-----------------------------------------------------------------------------------
Shri R.K. Soni, learned counsel for the petitioners.
-----------------------------------------------------------------------------------
                                     ORDER

th (Passed on 5 day of October, 2021)

1. Heard on I.A.No.4283/2018, an application for condonation of

delay through virtual hearing mode.

2. The instant application under Section 151 of CPC has been

preferred by the petitioners for restoration of

S.A.No.1019/2006 which got dismissed on 25-09-2014

because of non compliance of peremptory order dated 28-07-

2014 passed in Second Appeal No.1019/2006.

3. It is the submission of learned for the petitioners that second

appeal has been filed by the petitioners in which vide order

dated 02-01-2007, notice of I.A.No.21084/2006 (stay

application) was issued on payment of process fee within a

week and status-quo order was granted to the petitioners. Later

on, it appears that respondents were not served, therefore, on

28-07-2014, this Court again issued direction for payment of

process fee within seven days for service of respondents with

peremptory clause. Since petitioners could not contact with

counsel in respect of case, therefore, process fee could not be

paid for service of respondents. When execution proceedings

started then the petitioners came to the knowledge of litigation

and thereafter contacted the counsel. Application is barred by

more than 4 years and same be condoned and second appeal

be restored to its original number.

4. Heard counsel for the petitioners at length.

5. This is a case in which present petitioners are defendants and

it appears from the record that respondents No.1to6 filed a suit

against the present petitioners in year 1998 and vide judgment

and decree dated 28-07-1999 they succeeded as plaintiffs.

Later on, in First Appeal, result remained the same when first

appellate Court vide judgment and decree dated 30-08-2006

affirmed the judgment of trial Court. Thereafter petitioners

preferred second appeal before this Court and vide order dated

02-01-2007, petitioners obtained status-quo order in their

favour and they were required to pay process fee for service of

respondents. It appears that they did not pay the process fee

for next 7 years and matter kept hanging.

6. Vide order dated 28-07-2014, this Court directed the

petitioners as appellants to pay process fee within seven days

and peremptory clause has been added so that petitioners may

not delay the proceedings. It further appears that no

affirmative steps have been taken by the petitioners for

payment of process fee, therefore, vide order dated 25-09-

2014 the case was dismissed for non compliance of Court

peremptory order dated 28-07-2014.

7. Thereafter when execution has been started then in 2018

petitioners/appellants preferred this application.

8. More than 4 years delay has been caused in filing the

restoration application and no reasonable explanation or

sufficient cause has been shown before this Court by counsel

for the petitioners for consideration. It is not the period of

delay but the sufficiency of cause which is of paramount

consideration. It appears that plaintiffs/decree holders are still

languishing in lurch despite having decree in their favour for

last 22 years. No bona fides have been shown by the

petitioners. It appears that they were always interested in

protracting the litigation, therefore, on this count also, no

indulgence can be shown.

9. Resultantly, application (I.A.No.4283/2018) for condonation

of delay is hereby dismissed. Consequently, application for

restoration being misconceived and sans merits is hereby

dismissed.

10. Trial Court/executing Court be informed accordingly.

                                                                     (Anand Pathak)
Anil*                                                                    Judge

ANIL         Digitally signed by ANIL KUMAR
             CHAURASIYA
             DN: c=IN, o=HIGH COURT OF


KUMAR
             MADHYA PRADESH BENCH
             GWALIOR, ou=HIGH COURT OF
             MADHYA PRADESH BENCH
             GWALIOR, postalCode=474001,

CHAURASI     st=Madhya Pradesh,
             2.5.4.20=8512f40a1a9eaa50b6802d0
             68b51dae27e84c266b09d283f0799e


YA
             67cdc7df50f, cn=ANIL KUMAR
             CHAURASIYA
             Date: 2021.10.05 13:51:11 -07'00'