These are two applications one for recall of the order dated 24.2.2009 passed on application no. 55451 of 1999 and the order dated 24.2.2009 passed on application no. 5864 of 1997 and the other for condonation of delay. Both these applications one for restitution of possession and the other for stay have been dismissed for non prosecution.
On 24.2.2009 the appeal itself was dismissed for non prosecution. A restoration application was made to restore the appeal and recall the order dismissing the appeal for non prosecution and the same was allowed on 13.11.2009 and the appeal has been restored to its original number.
Learned counsel for the appellant submits that they came to know subsequently that the application for restitution of possession and stay application were also dismissed for non prosecution on the same day i.e. 24.2.2009.
The reasons shown in the affidavit for condoning the delay in filing the recall application is sufficient. The delay is condoned. The condonation of delay application is allowed.
Sri A.P. Srivastava learned counsel appearing for the respondent has resisted the restoration of stay application and application for restitution for possession by stating that a subsequent stay application has been filed by the appellant and therefore both the applications for restitution of possession and for stay are not required to be restored and the appellant should advance his submissions on the fresh stay application. He further states that the appeal is admitted and requires to be heard and decided finally.
Having considered the submission of both the parties and perused the record the appeal was dismissed for non prosecution on 24.2.2009 and it has been restored by the order dated 13.11.2009. The aforesaid two applications were also dismissed for non prosecution on 24.2.2009. Whether the said applications survive on merit or not is not to be considered while considering an application for recall. Consequently the reasons shown in the affidavit and the fact that the order dated 24.2.2009 dismissing the appeal for non prosecution has been recalled the order dated 24.2.2009 passed on application no. 55451 of 1999 (restitution of possession) and order dated 24.2.2009 passed on application no. 5864 of 1997 (stay application) stands recalled and both the applications are restored to their original number.
In view of the circumstances of the case it is provided that in so far as the application for restitution of possession is concerned the same may be considered at the time of final hearing of the appeal or earlier in case the fresh stay application is considered by the court.
As prayed by Sri A.P. Srivastava let the stay vacation application be listed for orders.
Order Date :- 7.1.2010 Pravin