The court invoked the inherent powers under Section 151 CPC to allow the restoration application and held that the application for restoration was maintainable under Order IX Rule 4 CPC.

ORDER

1. In order to meet out the defect pointed out by office for mismatch of parties in the restoration application No.206/2019 with parties in original restoration application No.423/2018 and first appeal No.157/2010 is concerned, the applicants-appellants have filed an application dated 10.06.2019, purportedly under Section 151 CPC alleging inter alia that applicant No.2 namely Purushottam had passed away on 13.07.2015 during pendency of first appeal. However, this fact was not brought on record and due to inadvertent error, appropriate application to bring the factum of his death and his LRs on record could not be filed in first appeal as also in restoration application No.423/2018.

2. It has been alleged that since thereafter, the first appeal was dismissed on 08.07.2016 due to non-compliance of peremptory order dated 27.04.2016, hence, restoration application No.423/2018, which was filed with some delay. The restoration application too was dismissed due to non-presence of counsel for applicants on 30.04.2019, hence, in second restoration application, the factum of death of applicant No.2 -Purushottam has been brought on record, which fact may be taken on record and his legal representatives may be allowed to be substituted in his place.

3. The present restoration applications arise out of civil first appeal involving the dispute between parties in relation to partition of immovable properties.

4. For reasons mentioned in application and mentioned hereinabove, the delay in filing application is condoned and legal representatives of deceased applicant No.2 are allowed to be substituted, the present restoration application. The applicants have already filed the present restoration application with impleadment of legal representatives of deceased applicant No.2, hence, office objection stands meet out in view of allowing the application and same is overruled.

5. With consent of counsel for both parties, heard on both restoration applications bearing Nos.206/2019 and 423/2018.

6. It appears from record that applicants have filed one Civil First Appeal No.157/2010, assailing judgment and preliminary decree for partition dated 06.03.2010. The first appeal was admitted for hearing vide order dated 16.04.2010 and notices were issued to respondents. Out of four respondents, notice on respondent No.1-plaintiff Deendayal had been served and he had put in appearance through an Advocate. Proceedings on filing of first appeal were pending at the stage of filing of PF and notices for unserved respondent Nos.3 and 4. On the notice of respondent No.2, report was received that he had passed away. At that stage, this Court passed a peremptory order dated 27.04.2016 for filing PF and notices for unserved respondents and it was observed that if applicant-defendant failed to file required PF and notices, appeal would stand dismissed without further reference to the Court. It appears that applicant-appellant could not file required PF and notices within prescribed time. Accordingly, the first appeal was dismissed on 08.07.2016 pursuant to non-compliance of the peremptory order dated 27.04.2016.

7. Thereafter, applicants filed a restoration application No.423/2018 on 29.06.2018. Since, there was some delay in filing restoration application, separate application under Section 5 of the Limitation Act was also filed seeking condonation of delay. This Court, vide order dated 15.01.2019 issued notices on the application under Section 5 of the Limitation Act before considering the restoration application of applicant on merits. It appears from record that notices of Section 5 of the Limitation Act were served on respondent No.1-plaintiff and he had appeared before the Court, however, restoration application was dismissed vide order dated 30.04.2019 due to non presence of counsel for applicants. It may be observed that on 30.04.2019, no one appeared on behalf of respondent No.1-plaintiff as well.

8. Since, the restoration application No.423/2018 was dis