Uttarakhand High Court
SA/89/2021 on 24 March, 2025
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
24.03.2025 SA No. 89 of 2021
H on'ble Vive k Bha r t i Sha r m a , J.
Mr. Sandeep Kothari, counsel for the
appellants.
2. Mr. Neeraj Garg, counsel for the
respondent.
3. Counsel for the appellants would submit
that the junior counsel Ms. Abhilasha Tomar in
his office has been dealing this case, therefore,
some adjournment may be given.
4. Per contra, counsel for the respondent
vehemently opposed the said request on the
ground that the appellant has suppressed the
important fact from the Court while obtaining the
interim order dated 28.06.2023 suppressing the
fact that the second appeal was filed beyond
limitation and the delay condonation application
was to be allowed first.
He would further submit that even on the
previous date i.e. 22.06.2023, the
applicant/appellant conveniently did not place the
fact before the Court that notice were to be issued
on the delay condonation application and not on
the appeal and the next date was fixed on
22.08.2023, however, just six days after the case
was taken up on mention, interim stay on the
effect and operation of the impugned judgment
was taken without placing the fact before the
Court that the delay condonation application is to
be allowed first.
5. Counsel for the respondent would refer the
Order 41 Rule 3A of CPC as under:-
Order 41 Rule 3A. Application for
condonation of delay.--(1) When an appeal is
presented after the expiry of the period of
limitation specified therefore, it shall be
accompanied by an application supported by
affidavit setting forth the facts on which the
appellant relies to satisfy the Court that he had
sufficient cause for not preferring the appeal
within such period.
(2) If the Court sees no reason to reject the
application without the issue of a notice to the
respondent, notice hereof shall be issued to the
respondent and the matter shall be finally
decided by the Court before it proceeds to deal
with the appeal under rule 11 or rule 13, as the
case may be.
(3) Where an application has been made under
sub-rule (1), the Court shall not make an order
for the stay of execution of the decree against
which the appeal is proposed to be filed so long
as the Court does not, after hearing under rule
11, decide to hear the appeal.]
6. At this stage, learned counsel for the
appellant would submit that the order dated
28.06.2023 may be modified by directing that
appellant shall remove the moving part of the iron
gate i.e. the door hanging on the hinges attached
to the pillars of the gate within four weeks from
today.
7. In view of the above, the interim order
dated 28.06.2023 is hereby modified by directing
the appellant to remove the moving part of the
iron doors i.e. ¼iYys½ resting on the hinges attached
to the pillar, within four weeks.
8. List this matter on 03.07.2025.
( Vive k Bh a r t i Sh a r m a , J.)
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Akash
