Harpal Singh & Ors vs Balwant Singh & Ors

Leave granted.

Heard the learned counsel for the parties.

These appeals have been filed against the judgment and order dated 26.8.2010 passed by the High Court of Punjab and Haryana at Chandigarh in C.M.Nos. 9151-C and 9153-C of 2010 in R.S.A.No.3894 of 1987 seeking restoration of R.S.A. which was earlier dismissed for non prosecution on 11.5.2010. The application was filed by the appellants for recall of the order dated 11.5.2010.

A copy of the application has been brought on record as Annexure P-4. The High Court took up the said application and by order dated 26.8.2010 dismissed the applications. The reason given by the High court for dismissing the application is mentioned in para 3 which is to the following effect:

"3. It is reported by the learned counsel appearing for the applicants/appellants that order dated 18.1.2000 has not been complied with as yet. The regular second appeal was dismissed for non-prosecution on 11.5.2010. By way of present application under Order 41 Rule 19 C.P.C. applicants are seeking restoration of the appeal. In view of the fact that order dated 18.1.2000 has not been complied with, I am not inclined to restore the appeal. Moreover, no sufficient ground is made out to recall the order dated 11.5.2010 and to restore the appeal."

Learned counsel for the appellant submits that sufficient reasons were given in the application filed for recall of the order. Learned counsel, who had filed the appeal was elevated as a Judge of the High Court in March, 1991. Other relevant facts have been mentioned in the application. The High Court, however, without entering into the reasons given for recall of the order, dismissed the application on the ground that order dated 18.1.2000 passed by the High Court directing the appellant to furnish security of the mesne profit to the expenditure of the executing court was not complied with.

Learned counsel submitted that in the event there was no compliance of the order passed by the Court, at best the High Court could have vacated the interim order but that was not the ground for dismissing application for recall of the order dated 11.5.2010. We have considered the submissions of the parties and perused the record. The appellant had given ample reasons in the application for recall of the order which were not adverted to by the High Court and the applications were dismissed for non-compliance of the order dated 11.5.2010.

The learned counsel for the appellant is ready to furnish the entire amount of security of the mesne profit upto date before the Executing Court within a period of six weeks from today.

In view of the above, we are of the view that the orders dated 11.5.2010 and 26.8.2010 be set aside and the appeal is restored to its original number. The appellants shall furnish the security of the mesne profit upto date within six weeks from today before the Executing Court. The appeal being of the year 1987, we request the High Court to dispose of the appeal at an early date. We make it clear that if the appellants fail to give security of the mesne profit, the appeals shall stand dismissed.

The appeals are, accordingly, allowed. Pending application(s), if any, stand disposed of.