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MCA/2187/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR RESTORATION No. 2187 of 2010
In
SECOND
APPEAL No. 8 of 2009
=========================================
RAMIBEN
LALUBHAI RATHOD & 3 - Applicant(s)
Versus
EDUL
HIRAJI KANGA & 1 - Opponent(s)
=========================================
Appearance
:
MR RE
VARIAVA for
Applicant(s) : 1 - 4.
MR JB PARDIWALA for Opponent(s) : 1 -
2.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 01/09/2010
ORAL
ORDER
Rule.
Shri J.B. Pardiwala, learned
advocate waives service of notice of Rule on behalf of respondent
No.1.
In
the facts and circumstances of the case and with the consent of
learned advocates appearing for respective parties, present
application is taken up for final hearing today.
1. Present
application has been preferred by the applicants herein
appellants – original defendants to restore main Second Appeal
No.8/2009 with Civil Application No.422/2009.
2. Shri
Variava, learned advocate appearing on behalf of the applicants has
submitted that for the reason stated in the application and as he
himself met with an accident, he could not attend the Court and
therefore, nobody remain present on behalf of the applicants and
therefore, the Appeal came to be dismissed for non-prosecution.
Therefore, it is requested to allow the present application.
3. Shri
J.B. Pardiwala, learned advocate appearing on behalf of respondent
No.1 plaintiff has submitted that in normal circumstances, he
would not have objected to grant the present application and to
restore the main Second Appeal. However, he has submitted that the
judgment and decree passed by the learned trial Court which is
impugned in the present Second Appeal is sought to be executed by
respondent No.1 original plaintiff before the executing Court and
the learned executing Court has already heard the execution petition
and the matter is kept for orders on 6th.
It is submitted that therefore, if the Second Appeal is restored, it
will give a cause to the applicants to pray for time before the
learned executing Court. Shri Pardiwala, learned advocate appearing
on behalf of respondent No.1 has submitted that if this Court is
inclined to allow the present application, to restore the Second
Appeal, it may be clarified that unless any stay order is granted by
this Court in Second Appeal and/or Civil Application in Second
Appeal, merely on the ground that Second Appeal is restored to file,
executing Court may not adjourn the matter.
4. Heard
learned advocates appearing on behalf of respective parties and
considering the averments in the application that the learned
advocate appearing on behalf of the applicants was unable to come to
the Court as he met with an accident, present application is allowed
and Second Appeal No.8/2009 with Civil Application No.422/2009 are
restored to file. Rule is made absolute accordingly. However, it is
made clear that unless there is any stay order granted by this Court,
restoration of Second Appeal may not be considered as a ground to
adjourn the execution petition and it goes without saying that if any
further order is passed by the executing Court, the same shall always
be subject to further order that may be passed in Second Appeal
No.8/2009 with Civil Application No.422/2009. Direct service is
permitted.
(M.R.
Shah, J.)
*menon
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