Court No. - 44
Case :- FIRST APPEAL FROM ORDER No. - 2154 of 2005 Appellant :- G.M. Ganga Pollution Control Unit And Another Respondent :- M/S M.K. Traders And Another Counsel for Appellant :- M.M.D. Agarwal,Vimlesh Kumar Rai Counsel for Respondent :- W.H. Khan,Arun K.Singh -I,P.R. Ganguly,R.R. Ganguly
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Krishan Pahal,J.
This restoration application is pending since 2015.
No one has put in appearance to press the restoration application.
Mr. Arun K. Singh, learned counsel for the appellant appears on behalf of respondent No. 1.
The delay condonation application in support of the restoration application has been filed to assert that the delay in filing the restoration application had occurred in getting the record of the execution case No. 17 of 2015. The contention is that the appellant came to know the fact of dismissal of this appeal upon an inspection made on 15.12.2015. The affidavit accompanying the delay application had been sworn on 17.12.2015 before the Oath Commissioner.
Learned counsel for the respondent submits that the present appeal has been filed against the award dated 15.9.2000 which was passed under Section 13 read with Section 33 of the Arbitration Act and also the order dated 19.5.2005 of dismissal of the application under Section 5 of the Arbitration Act. The award has become Rule of the Court on 31.5.2005.
Be that as it may, the present appeal had been dismissed for want of prosecution on 1.12.2014.
The contention in the affidavit accompanying the delay condonation application is that an undated notice issued by the Civil Judge Senior Division Allahabad in execution Case No. 17 of 2015 had been served upon the appellant on 26.10.2015.
Thereafter, effort was made to get a copy of the order from the file of the execution case. An application was moved on 27.11.2015 on behalf of the appellant for getting the copy of the plaint of the execution case but as no order could be passed on the same, On 1.12.2015 again an application was moved for inspection of the executing case which was allowed and the inspection was done on 15.12.2015. The contention, thus, is that the appellant came to know about the order of the dismissal of the present appeal only upon inspection made on 15.12.2015.
This contention of the appellant itself shows that the appellant came to know about the dismissal of the appeal on 26.10.2015 itself when he got the notice of the execution case. There was no justification for the appellant to wait for seeking the information regarding the dismissal of the appeal, from the file of the execution case.
The appellant's counsel in any case, had not approached this Court to know the status of the appeal. Nothing has been stated as to why the appellant could not get status of the appeal from his counsel.
It is, thus, evident that the delay in filing the restoration application about one year has not been explained. Day to day delay was required to be explained by the appellant.
Considering the material on record, we do not find any merit in the delay condonation of the appeal. The delay condonation application is rejected in the absence of the appellant/applicant.
The restoration application is, accordingly, dismissed.
Order Date :- 28.10.2021 SY