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2006 Supreme(All) 2391
[2006(10) ADJ 687]
ALLAHABAD HIGH COURT
Before : S.P. Mehrotra, J.
Basant Lal and another ...Appellant
Versus
Lakshmi Chand ....Respondent
(Second Appeal No. 2576 of 1983, decided on 1st September, 2006)
Counsel :
Ajeet Kumar, Vinod Sinha, Dr. Gyan Prakash, Yasharth, Ramjee Saxena, S.P. Singh, Dinesh Rai for the Appellant; S.P. Singh Raghav, R.K. Pandey, R.B. Singhal for the Respondent.
Headnote:Code of Civil Procedure, 1908—Sections 100, 141, 107, 108, 151 and Order XXXIX, Rules 1, 2—Second appeal—Restoration application and substitution application—Filed on behalf of defendants/appellants—Restoration application for recalling order dismissing second appeal, as having abated—And prayer for restoring second appeal to its original number—Prayer made in substitution application that S and P to be sons of plaintiff-respondent, be substituted—Proceedings being taken on said applications, would be covered within purview of phrase “all proceedings in any Court of Civil jurisdiction”, occurring in Section 141—Proceedings in said applications were not execution proceedings—Open to Court to pass appropriate orders for injunction, or stay during pendency of proceedings on said applications—Open to Court to pass appropriate orders for injunction, or stay—Therefore, Court directed that until further orders of Court, status quo, as of date, in regard to possession of property, would be maintained by defendants/appellants as well as by S. and P. (i.e., sons of plaintiff-respondent). [Paras 30, 33, 39, 42, 55, 62 and 66]
Order on Civil Misc.(Injunction) Application No. 167798 of 2006
Hon. S.P. Mehrotra, J.—Second Appeal No. 2576 of 1983 was filed on 11.11.1983. By the order dated 22.2.1984, the Second Appeal was admitted and notices were directed to be issued.
2. It further appears that a Stay Application, namely, Civil Misc. Application No. 4247 of 1983 (dated 11.11.1983) was also filed alongwith the Second Appeal. By the order dated 22.2.1984 passed on the said Application, notices were directed to be issued on the said Application, and in the meanwhile, the operation of the decree of the Lower Court was stayed. The said order dated 22.2.1984 is reproduced below:
“Issue notice.
Meanwhile the operation of the decree of the lower Court shall remain stayed.”
3. It further appears that by the order dated 24.4.1984, the said Interim Order dated 22.2.1984 was confirmed subject to certain directions. The said Order dated 24.4.1984 is quoted below:
“Heard learned counsel for the parties. The interim order dated 22.2.1984 staying the operation of the decree of the lower Court is confirmed subject to the direction that as regards possession status quo shall be maintained and the appellant shall not transfer the land in dispute to any party until further orders of this Court.”
4. It further appears that in the said Second Appeal, an Application, namely, Civil Misc. Application No. 196968 of 2005 was filed on behalf of Kishan Singh (applicant).
5. The said Application was accompanied by an affidavit, sworn by the said Kishan Singh (applicant) on 25.9.2005.
6. In paragraph 2 of the said affidavit, it was, interalia, stated that Lakshmi Chand (plaintiff-respondent in the Second appeal) had died on 24.5.2005 in Lok Nayak Hospital, New Delhi leaving behind the said Kishan Singh as his sole heir and legal representative.
7. In view of the averments made in paragraph 2 of the said affidavit, the Court by its order dated 23.1.2006 directed the Office to submit Report as to whether any Substitution Application had been filed to bring on record the heirs and legal representatives of the said Lakshmi Chand (plaintiff-respondent).
8. Pursuant to the order dated 23.1.2006, the Office submitted its Report dated 20.2.2006. A perusal of the said Office Report showed that no Substitution Application had been filed for bringing on record the heirs and legal representatives of the said Lakshmi Chand (plaintiff-respondent).
9. In the circumstances and keeping in view the fact that the said Lakshmi Chand was the sole plaintiff-respondent, the Court by its order dated 6.2.2006 held that the Second Appeal stood dismissed as having abated.
10. It further appears that the following Applications were thereafter filed on behalf of the defendants-appellants:
1. Civil Misc. (Restoration) Application No. 42282 of 2006
2. Civil Misc. (Substitution) Application No. 93025 of 2006
3. Civil Misc. (Delay Condonation) Application No. 93028 of 2006
4. Civil Misc. Application No. 154037 of 2006
11. The prayer made in the aforementioned Restoration Application (shown at Sl. No. 1 above) is for recalling the said order dated 6.2.2006 dismissing the Second Appeal as having abated and for restoring the Second Appeal to its original number.
12. The prayer made in the aforementioned Substitution Application (shown at Sl. No. 2 above) is that Sonu and Pilloo, stated to be the sons of the late Lakshmi Chand (plaintiff-respondent) be substituted in place of the said Lakshmi Chand (plaintiff-respondent).
13. The aforementioned Application (shown at Sl. No. 4 above) has been filed alongwith a Supplementary Affidavit giving correct address in respect of the aforesaid Sonu and Pilloo, stated to be the sons of the said Lakshmi Chand (plaintiff-respondent).
14. The aforementioned Delay Condonation Application (shown at Sl. No. 3 above) has been filed, interalia, praying for condoning the delay in filing the aforementioned Substitution Application (shown at Sl. No. 2 above).
15. By the order dated
