Uttarakhand High Court
Smt. Shakuntala Rani & Anr vs Om Prakash Kohli on 23 July, 2014
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
First Appeal No. 344/2001 (New No.)
89/1989 (Old No.)
(Under Section 96 of C.P.C.)
Smt. Shakuntala Rani & Anr. .... Appellants
Versus
Om Prakash Kohli ... Respondent
Mr. Piyush Garg, Adv. for the appellants.
Mr. Arvind Vashishtha, Adv. for the respondent.
23rd July, 2014
Hon'ble Servesh Kumar Gupta, J.
Having heard the learned counsel for both the parties, it transpires that there was a decree of specific performance in favour of Mr. Om Prakash Kohli, passed in December, 1988 on the basis of an un-registered agreement to sale allegedly executed by Mr. Babu Ram. In the year 1989, plaintiff moved before the Executing Court to get the fruits of his decree but meanwhile the appeal was preferred by Smt. Shakuntala Rani (widow of Babu Ram) alongwith her son. So, the execution of decree was stayed by the Hon'ble Allahabad High Court and Smt. Shakuntala Rani was directed to deposit Rs.4,500/- per year to the plaintiff probably in order to ensure the return of original money with interest in case suit fails.
Eventually, the appeal was transferred to this High Court and the same was dismissed in non-prosecution on 22.03.2002. Smt. Shakuntala Rani or Smt. Bhawna Sharma (who claimed herself to be the successors of Smt. Shakuntala Rani on the basis of the Will) continued to deposit the payment of Rs. 4,500/- per year up to the year 2007, as directed by the Hon'ble Allahabad High Court and thereafter the same was stopped.
Learned counsel for the appellants has submitted that even the plaintiff/respondent was not aware about the dismissal of the instant appeal, and that is why he did not 2 press his execution, which was stayed by the Hon'ble Allahabad High Court way back in the year 1989 at the time of admission of this appeal.
The contention of learned counsel for the respondent is that the information sent by this Court to the District Judge, Dehradun, regarding dismissal of the suit, as has been adverted by letter No.1895 dated 20.06.2002, though may be true but at the same time, it is apparent that such information sent by this Court to the District Judge, Dehradun was probably misplaced somewhere either in the transit or in the judgeship itself otherwise District Judge, Dehradun would not have written a fresh letter to this Court asking the status of the appeal.
Vide another letter No.2862 dated 24.06.2009, this Court again informed the District Judge, Dehradun regarding the status of the appeal. It is apparent that even the plaintiff/respondent was unaware about the dismissal of the appeal in the year 2002 and even after in June, 2009, that is why he instituted the second execution No.1/2013 to get executed the decree.
It has been submitted by the learned counsel for the appellant that in fact during the course of complying with the directions of Hon'ble Allahabad High Court, Smt. Shakuntala Rani engaged a lawyer Mr. Nagesh Agarwal, who filed his Vakalatnama and the same was kept on record, awaiting the listing of the appeal. Since, the appeal had already been dismissed, hence, the Registry never listed it. This way, it was sufficient to assume for Mr. Nagesh Agarwal, Advocate as well as his client Smt. Shakuntala Rani to remain in oblivion regarding the status of appeal. It is the second execution moved by the plaintiff/respondent, which alarmed the judgment debtor to knock the doors of this Court by way of moving the restoration application.
3Having considered the pros and cons, I feel that there is force in the submissions of learned counsel for the appellants and thus, the appeal is restored to its original number.
Lower Court Records be summoned.
List up this appeal for final hearing at the earliest after receiving the LCR from the Trial Court.
The second execution (if any) moved by Mr. Om Prakash Kohli or his successors plaintiffs, seeking the execution of decree passed in December, 1988, shall remain in abeyance. All the applications (MCC 746/2013, CLMA 12719/2013, CLMA 12720/2013, CLMA 12721/2013. CLMA 12722/2013) annexed with the restoration application stand disposed of. Substitution application (CLMA No.12723/2013) is also allowed.
Let, amended memo be filed within three days by the learned counsel for the appellants. Copy of the amended memo be provided to learned counsel for the respondent.
(Servesh Kumar Gupta, J.)
Nadim 23.07.2014