SUBHASH CHAND Vs. XIIITH ADDL DISTRICT JUDGE GHAZIABAD

JUDGEMENT

(1.) The order dated 26.7.1999 passed by the learned Additional District Judge, XIII Court, Ghaziabad in Civil Appeal No. 103 of 1999 has since been challenged in this writ petition.

(2.) Mr. A. K. Singh, learned counsel for the petitioner contends that memorandum of appeal did not accompany any vakalatnama executed by the appellant. The memorandum of appeal was also not signed by the appellant. The opposite party having contacted the appellant whereupon had informed him that they have not filed any appeal. In such circumstances, an application was filed on behalf of the opposite party in the appeal for dismissal of the appeal unless the appellant appears in the Court. It appears that the appellant had appeared in the Court and had filed an affidavit contending that the appeal was filed on his behalf by the counsel for whom the vakalatnama was executed in the suit which had empowered him even to continue the proceedings in the appeal. Admittedly, the same lawyer who had contested the suit on behalf of the defendant in the trial court had filed the appeal. Since there is no change of lawyer, therefore, it is not necessary to execute a fresh vakalatnama in favour of the lawyer who by virtue of the vakalatnama already executed is empowered to prefer an appeal or revision as the case may be. This having been disputed by Mr. A. K. Singh learned counsel for the petitioner, his attention was drawn to the vakalatnama attached to this petition where itself the vakalatnama empowered the counsel to prefer an appeal and revision as well. If it ts so, in that event, if the same lawyer flies the appeal in that event there is no necessity of execution of fresh vakalatnama in his favour who is already empowered by reason of the execution of a vakalatnama in the suit itself. It would be necessary if there is any change of-lawyer. Once the appellant appears in the Court and files an affidavit affirming that the appeal was filed on his instruction and on his behalf, then there ts no scope to decide the question on the basis of any objection raised on behalf of the petitioner-plaintiff. Therefore, I do not find any infirmity with regard to the order by which the appeal was admitted for hearing.

(3.) So far as the question of stay is concerned, the appellate court had granted an order of stay with regard to the execution of the decree by compelling execution of the deed in pursuance of the decree obtained in the suit by the parties. If in case stay is not granted, the appeal will become infructuous. As such, I do not find any reason to interfere with the order of stay granted by the appeal court below. But then appeal court has not granted the stay till disposal of the appeal. But had granted the stay till the next date of listing which may be renewed from time to time so that the appellant may not delay the process of disposal of the appeal. Thus, it had protected the interest of the opposite party in the appeal. Therefore. I do not find any infirmity in the order dated 26.7.1999 impugned in this writ petition. However, petitioner herein may appear in the learned court of appeal below and take all steps to make the appeal ready and also apply for expeditious hearing. If such an application is made, the appeal court would decide the appeal as expeditiously as possible preferably within a period of one year.