NAGESH BANDU POTDAR Vs. PRABHADEVI BAPUSAHEB KUMBHOJKAR

JUDGEMENT

(1.) Heard the learned counsel appearing for the Applicants and the learned counsel appearing for the Respondents. This civil application is taken out by the original Appellants in the Second Appeal, for recalling the order dated 9 th June, 2011, dismissing the Second Appeal on merits.

(2.) The brief facts which are relevant and necessary for deciding the Civil Application are stated hereinbelow-

(3.) The Applicants are original Defendants in Regular Civil Suit No. 174 of 1994 which was filed for partition by the Respondents/Defendants and the decree of partition was passed on 13 th January, 2000 by the trial court. The appeal filed against this order was dismissed. Second Appeal was admitted by this Court on 7 th September, 2004 and stay was granted to the execution of the judgment and decree passed by the District Court. The Second Appeal was initially dismissed for want of prosecution by an order dated 31 st August, 2009. By the said order which was a conditional order, a direction was given to the Respondents, herein to prepare the paperbook and non-compliance of the said order resulted in dismissal of the Second Appeal, without reference to the Court. Civil Application No. 387 of 2011 was filed for restoration and the order dated 31 st August 2009 was recalled and the Second Appeal was restored to the file. Thereafter the matter was placed on the board and since the advocate for the Appellants did not appear on two occasions, the appeal was dismissed by the impugned order. Being aggrieved by the said order, the Applicants have filed this Civil Application for the restoration of the Second Appeal.