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Judgment
Shiv Narayan Dhingra, J.—The applicant/respondent had moved an application u/s 30 of Arbitration Act, 1940 being IA No. 14/2004. This application was dismissed on 6.1.2006 by this Court for non-prosecution as none had been appearing before the Joint Registrar on the last three dates of hearings and the award was made a rule of Court in CS(OS) No. 884A/2003. The applicant thereafter moved an application being IA No. 2319/2006 under Order 9 Rule 13 CPC. Notice of this application was ordered to be served on 27.2.2006 to the non-applicant subject to deposit of costs of Rs. 10,000/- returnable for 15th May, 2006. On 15.5.2006, the Counsel for both the parties were present and Counsel for the respondent/applicant was put to notice that in case she wanted the application to be allowed, she should proceed with the matter on merits. The Counsel stated that she was not ready to argue the matter on merits and finding that costs imposed vide order dated 27.2.2006 was also not deposited, the Court passed following order:
I see no reason to restore the matter when the respondent is not willing to argue the mater on merits and has not even complied with the Order for either process fee or deposit of costs.
List on 11.8.2006
Simultaneously, the applicant/respondent had moved an application being IA No. 2320/2006 for stay of execution. The Court vide order dated 15.5.2006 rejected the application.
It is obvious from the above order passed by the Court that the application made by the applicant under Order 9 Rule 13 CPC stood dismissed on 15.52006. The applicant thereafter moved an application under Order 47 Rule 1 CPC being IA No. 6679/2006 for review of order dated 15.5.2006. In this application for review the Counsel stated that on 15.5.2006, the Court dismissed/rejected the IA No. 2320/06 for stay of execution and issued notice to the Counsel for the petitioner for 11.8.2006 in IA No. 2319/2006, application for restoration. In fact, this statement made in the review application was totally contrary to order dated 15.5.2006. The review application was disposed of vide order dated 16.11.2006 and the Court observed that there was no error apparent on the face of the record for review of order dated 15.5.2006. The Court however observed that in case the defendant seeks an interim relief, nothing precluded the learned Judge hearing IA No. 2319/2006 for considering the prayer made by the defendant.
It seems that due to misrepresentation made by the Counsel for the review applicant, that application IA No. 2319/2006 was still surviving, the Court passed this order without actually verifying the record that application IA No. 2319/2006 already stood dismissed. The order dated 15.5.2006 shows that application IA No. 2319/2006 was rejected however, date of 11.8.2006 was given inadvertently in the case although nothing survived in the case because both the applications stood dismissed. IA No. 2319/2006 was again wrongly listed before the Court on 1.12.2006. It was again dismissed for non-prosecution because none appeared for the respondent/applicant. Thereafter, an application under Order 9 Rule 9 CPC was made for restoration on IA No. 2319/2006 as if IA No. 2319/2006 was surviving. During the hearing of this application, it seems it was not brought to the notice of the Judge that the application IA No. 2319/2006 had already been dismissed and by no order it had been revived. The Court therefore passed an order that a sum of Rs. 5,00,000/- be deposited by respondent/applicant and on depositing a sum of Rs. 5,00,000/- further proceedings in the execution shall remain stayed. In the meantime claimant/petitioner expired and the matter proceeded for substitution of his LRs. The matter was again taken up on 27.5.2009 when the LRs of deceased petitioner were brought on record and the application under Order 9 Rule 9 CPC for restoration of application IA No. 2319/2006 was also allowed and it was recorded that application IA No. 2319/2006 shall stand revived. However, the order dated 15.5.2006 shows that this application was dismissed and the order dated 15.5.2006 was not recalled by any subsequent order. I, therefore consider that this application (IA No. 2319/2006) under Order 9 Rule 13 CPC already stands dismissed and it cannot be heard again on merits.