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High Courts(2010) 11 AHC CK 0210

Shyam Narain & others vs Harakh Chandra Nahata and others

Allahabad High Court · Decided on 25 November 2010

HON’BLE JUDGES
Sudhanshu Dhulia, J and Prafulla C.Pant, J
RESULT
Dismissed
CASE NUMBER
First Appeal No. 280 of 2001

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Judgment

6 paragraphs · 338 words

Prafulla C. Pant, J.—This is Delay Condonation Application No. 6343 of 2010 for condonation of delay in moving Restoration Application No. 614 of 2010 for restoration of First Appeal No. 280 of 2001, which was dismissed for nonprosecution by this Court on 5.5.2005.

2.

Heard.

3.

The restoration application has been moved after a delay of more than five years (precisely one thousand eight hundred eighty three days). ApplicantPradeep Gupta is not the appellant in the first appeal. The case of the present applicant is that he purchased the property from appellant Shyam Narain on 3.6.2006 i.e. after one year of dismissal of the appeal.

4.

Learned Counsel for the applicant argued that his application for restoration is maintainable in view of the provision contained in Section 146 of Code of Civil Procedure, 1908 read with Order XXII Rule 10 of the Code (further read with Order XLI Rule 19 of the Code). In support of his contention, learned Counsel for the applicant (3rd party) has placed reliance in the case of Raj Kumar Vs. Sardari Lal and others (2004) 2 SCC 601:2004 SCFBRC 268.

5.

We have gone through the said authority of law. In the case, referred on behalf of the applicant, the transfer of the property to the transferee took place during the lis pending before the Court, but in the present case, the applicant has admittedly got the property transferred after one year of termination of the lis. In the circumstances, we are unable to agree with learned Counsel for the applicant that he can maintain the restoration application to get restored the first appeal dismissed in the year 2005, that too after a period of five years. Having considered the affidavit filed with the delay condonation application and facts and circumstances of the case, we do not find any sufficient reason to condone the delay in moving restoration application, as well.

6.

Therefore, Delay Condonation Application No. 6343 of 2010 is rejected. Also, the Restoration Application MCC No. 614 of 2010 stands dismissed.