TOTARAM AND OTHERS Vs. GAUTAMA BAI AND OTHERS

JUDGEMENT

(1.) Petitioner has filed this MCC seeking restoration of Second Appeal No. 239/1993, which was dismissed on 4.1.2007.

(2.) Shri Anuj Bhargava, learned counsel for the petitioners contended that the second appeal was admitted for final hearing on 6.9.1996. The sole appellant Bhadu S/o Shri Lala Koli died on 29.9.1998. Accordingly, second appeal stood automatically abated on 29.12.1998. The second appeal was posted before the Bench on 4.1.2007. Since legal representatives were not substituted, the second appeal was dismissed as abated. It is contended that a civil execution case No. 65A/81 x 2/08 was filed on 17.10.2008. The possession warrant was issued against the legal representatives of deceased appellant Bhadu on 8.5.2009. On 4.2.2009 the present petitioners came to know that Second Appeal No. 239/1993 was dismissed as abated. On 10.2.2010 they obtained certified copy of execution application. Immediately thereafter on 15.2.2010, instant application for condonation of delay was filed. He relied on chronological list of events and judgments of Supreme Court in Daria Lino D SA Dias and others vs. Anthony D SA and others, 2009 17 SCC 129; Perumon Bhagvathy Devaswom, Perinadu Village vs. Bhargavi Amma, 2008 8 SCC 321; National Capital Territory of Delhi vs. Umesh Kumar, 2008 8 SCC 333; Karuppaswamy and others vs. C. Ramamurthy, 1993 4 SCC 41.

(3.) Per Contra, Ms. Nidhi Bohra, learned counsel for respondents No. 2,3,5,7,12,14,15,16 and legal representa- tives of respondents No.11 and 17, contended that the appeal cannot be restored. The conduct of present petitioners is not proper. They did not participate even in the execution proceedings. She relied on (Balwant Singh v. Jagdish Singh, 2010 AIR(SC) 3043).