Bastiram And Ors And Ors vs Hans Raj

Heard on the second stay application. Counsel for the appellants submitted that this court vide order dated 11.01.2011 stayed the operation of the

judgment and decree dated 14.03.2008 passed by the Appellate Court as well as of the judgment and decree dated 27.07.2005 passed by the trial

court. The order dated 11.01.2011 reads as under:-

Learned Counsel for respondent submits that he pleads no instructions since the respondent has taken away the file from him.

Learned Counsel for the appellant submits that the execution proceedings have been initiated in the present matter and warrant of attachment has also

been issued against the appellants. In the facts and circumstances of the case, I deem it just and proper to issue fresh notice to the respondent and

stay the judgment and decrees of both the courts below.

Issue fresh notice to the sole respondent for engaging another Counsel. Rule is made returnable within four weeks.

In the meanwhile, operation of judgment & decree dt.14/03/2008 passed by Additional District & Sessions Judge No.2, Kishangarhbas, District Alwar

in Civil Appeal No.14/2005 and judgment & decree dt.27/07/2005 passed by Civil Judge [Sr.Div.] & Additional Chief Judicial Magistrate,

Kishangarbas, District Alwar in Civil Suit No.22/1998 shall remain stayed.

Counsel further submits that the appeal was dismissed in default by this court vide order dated 09.04.2013 which reads as under:-

On 31.01.2013, 22.02.2013 and 22.03.2013, no- one was present on behalf of the appellants. Today, also no-one was present on behalf of the

appellants even in second round. Therefore, the instant appeal stands dismissed in default. Consequently upon dismissal of the instant appeal, stay

application does not survive and the same stands also dismissed.

Counsel further submits that the application for vacation of the stay order was also dismissed by this court vide order dated 16.09.2013 which reads as

under:-

The matter comes up on an application for vacation of the stay order, filed by the respondent-plaintiff.

A perusal of the court file indicate that on 09.04.2013, the defendant-appellants' appeal was dismissed in default. Along with this Court specifically

observed that ""consequent upon dismissal of the instant appeal, stay application does not survive and the same stands also dismissed."" Thereafter on

the matter coming up before this Court on an application for restoration of the second appeal, vide order dated 12.07.2013, the second appeal was

indeed restored to its original number. However, the order dated 12.07.2013 does not indicate that stay specifically dismissed by this Court while

dismissing the second appeal in default on 09.04.2013 was revived.

In the case of Varred Jacob Vs. Sosamma Geevarghese & Ors. [AIR 2004 SC 3992] the Hon'ble Supreme Court has held that in the event of a

matter being dismissed in default and the stay obtaining therein being specifically dismissed, on the mere revival of the proceedings on an application

for restoration, the stay does not revive unless specifically directed by the Court restoring the proceedings. In the instant case, the order dated

12.07.2013 restoring the second appeal to its original number does not revive the stay specifically dismissed by this Court on 09.04.2013. In my

considered opinion, there being no operating stay in favour of the appellant, the application for vacation thereof by the appellant is misdirected.

this stage, Mr. R.B. Mathur, appearing for the respondent, seek to withdraw the application for vacation of the stay order.

Consequently, the application for vacation of stay order is dismissed as withdrawn.

Put up on 19.09.2013, as prayed.

Counsel further submits that on the restoration application filed on behalf of the appellants, the appeal was restored by this court vide order dated

12.07.2013 which reads as under:-

For the reasons stated in the application, the appeal is restored to its original number.

The restoration application is consequently allowed.

Counsel further submits that the appellants want to file appropriate application for probate before the learned trial court and since there was stay

already granted by this Court on 11.01.2011, therefore, prayed for staying the judgment and decree passed by the courts below.

Counsel for the respondent opposed the prayer made by counsel for the appellants.

Heard counsel for the parties and perused the record. Since there was a stay already granted by this Court on 11.01.2011, I deem it just and proper to

stay the judgment and decree of the courts below.

Accordingly, this second stay application is allowed and the operation of the judgment and decrees as earlier directed vide order dated 11.01.2011 shall

remain stayed till final disposal of the appeal. However, liberty is granted to the counsel for the respondent to file appropriate application, if need so

arises.