An application for restoration of an appeal dismissed in default for want of prosecution or for failure to deposit cost of service of process must be filed within 30 days from the date of dismissal, as prescribed under Article 122 of the Limitation Act, 1960.

1. - S.B. Civil Second Appeal No. 215/1980 was filed by defendant No 5 in Civil Suit No. 14/1971 of the trial Court. Defendant No. 5 had also impleaded in the array of appellants the firm M/s. Sarvan Kumar Rajendra Kumar through himself. The second appeal was admitted on 5th December, 1980. It appears from the proceedings of the Registry that by 8th April, 1981, respondents No. 1 to 3 in the appeal were duly served. Ramji Das and Prabhati Lal (who were defendants No. 2 and 4 in the suit and respondents No. 4 and 5 in the second appeal) were not served and, therefore, the Registry ordered for issue of fresh notice for these respondents. Process fee and notices were not filed by 23rd April, 1981 and hence the same were not issued. On 11th May, 1981, the counsel for the appellant sought time for the purpose. Thereafter also some more dates were given for filing of notices and process fees. Ultimately, the second appeal was listed for orders before the Bench on 7th August, 1981. On that date, Justice G.M. Lodha (as he then was) passed the following order:-

"Mr. Garg is granted one month's time to file notices and process fee, failing which the appeal would stand dismissed automatically."

2. Despite this order, process-fee and notices were not filed. It was on 15th September, 1981 that the appellant filed an application for condonation of delay in filing of process-fee. In that application, it was mentioned that the appellants counsel had given the money for the process-fee to his clerk Shri Ramesh who forgot to file the same by inadvertance. This application was disposed of by Justice G.M. Lodha on 22nd October, 1981. He was of the opinion that irrespective of the fact whether this Court after passing premptory order retains any jurisdiction to pass orders against the premptory orders by condoning delay or extending period, he was convinced that the explanation given for not filing notices and process-fee was very curious. He was not satisfied with the explanation and moreso when affidavit of the clerk concerned was not filed. He held that the period of one month which had been granted for filing notices and process-fee on 7th August, 1981 had expired on 7th September, 1981 and the appeal stood dismissed automatically, and, therefore, the application for restoration should not be accepted. The learned Judge also referred to the High Court Rules and held that process-fee and notices were filed on 15th September, 1981 after the appeal stood dismissed on 9th September, 1981 automatically and there was no sufficient cause for not filing process-fee and notice on various dates of hearing commencing from 3rd April 1981. The concluding portion of the order is-"The application for restoring the appeal now has got no force and is therefore, dismissed."

3. It may be mentioned here that as a matter of fact the appellant had filed an application for condonation of delay for filing of the process-fee and for restoration of the appeal. The application for condonation of delay lies under High Court Rules. In the earlier part of his order, the learned Judge himself referred that on 15th September, 1981, an application was moved for condonation of delay in filing process-fee and that application had come for consideration. Then, he proceeded on the presumption that an application for condonation may lie irrespective of the fact that there was a premtory order. Thereafter he proceeded further to examine the question of sufficient cause or good cause for not filing process fee and notices and disposed of the application as if it was an application for restoration of appeal.

4. Appellant No. 1 M/s. Sarwan Kumar Rajendra Kumar through Sarwan Kumar filed an application under Order 41 Rule 19 and Section 151, CPC for restoration of the appeal treating the aforesaid order dated 22nd October, 1981 as if it was an order of dismissal of appeal. In this restoration application, the same cause was shown that the aforesaid appellant had taken all the prec