LAXMI Vs. BEG RAM

JUDGEMENT

(1.) APPLICATION-CLMA No. 9625/2010 has been filed by the applicants/appellants seeking condonation of 2614 days' delay in filing restoration application bearing MCC No. 970/2010 against which the respondent has filed objection by moving application bearing CLMA No. 2358/2011.

(2.) HEARD learned counsel for the parties and perused the record.

(3.) IN support of delay condonation application, affidavit of Mr. Gyan has been filed on behalf of the applicants. It has been stated in the affidavit, on oath, that instant Second Appeal was filed by the applicants through Shri N.C. Rajvanshi, Advocate at Allahabad, who had assured the applicants that the appeal would be argued and prior intimation would be sent to them, as soon as the appeal would be listed for final hearing. The applicants were under the impression that the matter is still pending before the Court and when the matter would be listed they would be informed. The affidavit further asserts that on 07.10.2010, when the applicants received a Court's summon issued by 2nd Addl. Civil Judge (Jr. Div.), Roorkee in Execution Case no. 20 of 1992 'Beg Ram vs. Buddu and others', they took copy of said summon to a local counsel, who informed that the Second Appeal no. 1141 of 1992 was transferred from Allahabad High Court to Uttarakhand High Court at Nainital, which was dismissed for non prosecution on 14.08.2003. It has further been averred in the affidavit that no information/notice of transfer was sent to the applicants. Thereafter, the applicants contacted Mr. Siddhartha Singh, Advocate, during the vacations, who told that the High Court would reopen on 08.11.2010 and advised to move application for getting the Second Appeal restored. Thereafter, on 08.11.2010, the applicants came to Nainital and applied for certified copy of the order dated 14.08.2003. The applicants received certified copy of the order on 15.11.2010 and got prepared the restoration application but due to sudden demise of Hon'ble Justice Dharam Veer on 16.11.2010 and due to holiday of Id-Ul-Zuha on 17.11.2010, the restoration application was filed on 18.11.2010. It has been further averred in the affidavit that the applicants had no knowledge of the dismissal of Second Appeal, prior to receiving the notices of the said execution case and prior to enquiry made by the local counsel. The omission on the part of the applicants is neither deliberate nor willful and in case, restoration application is not allowed, after condoning the delay, the applicants shall suffer adversely.