KRISHNA VENKATESH PAI Vs. DEVAPPA AYYU NAIK

JUDGEMENT

(1.) This appeal is directed against the order of the Court of the District Judge, North Kanara, rejecting the application made under Rule 19 of Order 41 of the Code for re-admission of Civil Appeal No. 195/57 dismissed under sub-rule (1) of Rule 17 of Order 41 on 19-6-1961, when Sri. M. R. Kamath, Pleader, reported no instructions, In his application, the appellant stated that he had engaged Sri M. R. Kamath to argue the appeal, but the said Pleader without intimation or notice reported want of instructions and that he came to know of the dismissal of the appeal only on 20-11-1961 when the Pleader for the opposite Party in the trial court asked him whether he would pay the costs or execution should be issued. The application was opposed by the respondent No. 3 only. The appellant also made an application under Section 5 of the Limitation Act for condonation of delay in making the application for restoration. He averred that he came to know of the dismissal of the appeal only on 28-11-1961. The applications were filed on 7-12-61.

(2.) The appellant examined himself in support of his application and there was no evidence on the side of respondent No. 3. The District Judge disbelieved the case of the appellant that he came to know of the dismissal of the appeal only on 28-11-61 from the Pleader for the opponents as alleged, as no costs were awarded in the appeal. The application for condonation of delay was refused and the application was rejected. Against the dismissal of the application for restoration of the appeal, the above appeal has been preferred. The respondents are unrepresented.

(3.) I have pursued the records of the case, Sri. M. R. Kamath who was the Pleader for the appellant in Civil Appeal No. 195/57 filed a memo on 19-6-61 which reads thus: