ORDER

Hon’ble Sharad Kumar Sharma, J.

With the prior consent of the learned counsels for the parties as given on 17.03.2023, the Second Appeal has been placed today, though being public Holiday, they agreed to argue on merits of the Second Appeal.

2. Consequently, the Second Appeal has been notified to be listed on the orders of the Hon’ble The Chief Justice.

3. This Second Appeal carries a very chequered history. The precise chronological dates and events are given hereunder :-

i. In 1967, a Suit was filed for recovery of money, which was due to the plaintiff Bank, on a financial assistance which was extended to the defendants to the Suit.

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ii. On 21 May, 1966, the Suit No.17 of 1966, Nainital Bank Ltd. Vs. Ram Babu Mehrotra, stood instituted before the Court of Addl. Civil Judge, Nainital.

th iii. On 9 June, 1966, the aforesaid Suit for recovery of money was decreed.

th iv. On 17 April, 1973, the Execution Case No.

19 of 1967, was registered before the Court of Addl.

th Civil Judge, Nainital, for executing the decree of 9 June, 1966.

v. Form IV-60 was issued in execution case under Order 21 Rule 66 in a reference to the proceedings under Section 73 of the CPC.

vi. A publication of the auction notice by the Government approved auctioneer was undertaken.

th vii. On 19 September, 1968, the auction sale notice was published in a local newspaper by the Government Approved Auctioneer called as “Khabar Sagar”.

th viii. Auction proclamation was made on 9 th February, 1973, and auction was held on 10 July, 1973.

st ix. On 31 July, 1974, a Misc. Civil Appeal No.

39 of 1973, was allowed ex parte, as against the decree th of 9 June, 1966. Consequently, the sale dated 10.07.1973 was set aside by the Court of District Judge.

x. Being an ex parte decree, a restoration was filed under Order 41 Rule 21 of the CPC, to set aside the ex

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parte order dated 31 July, 1974, passed in Civil Appeal No.39 of 1973.

th xi. On 24 May, 1975, the ex parte decree dated st

31 July, 1974 was set aside and the Misc. Civil Appeal No. 39 of 1973, was restored to its original number.

xii. Misc. Civil Appeal No. 39 of 1973, Harnam Singh Vs. Ram Babu Mehrotra, was decided on merits.

th The judgment of Addl. Civil Judge dated 9 May, th

1973, was set aside and the sale deed of 10 March, 1973 was confirmed.

st xiii. On 31 October, 1975, Justice M.P. Saxena, confirmed the sale and directed the dispossession of the appellants from the disputed property, to be handed over to the auction purchaser.

nd xiv. On 22 July, 1980, on the basis of the th confirmation of sale dated 10 March, 1973, Nagar Palika, Haldwani, ordered mutation of the name of auction purchaser Harnam Singh, and he was also assessed for payment of municipal taxes.

th xv. On 6 July, 1987, the Misc. Second Appeal was preferred before the High Court of Judicature at Allahabad and the same was dismissed thereby confirming the judgement of Executing Court.

th xvi. On 5 February, 1988, a review was filed by the appellant, being Review No. 11 of 1987, which remained pending.

xvii. In 2003, the case was transferred from Allahabad High Court on the directions of the Hon’ble the Chief Justice of High Court of Judicature at Allahabad as per Section 35 of the Reorganization Act.

th xviii. On transfer, on 28 April, 2006, notices were issued to the respondents and it was informed in the office report that appellant No.2, has died and the service on respondent Nos. 1/1 to 1/5 and respondent Nos. 1 and 2 was found sufficient.

th xix. On 9 June, 2006, the Second Appeal was dismissed for want of prosecution by this High Court.

xx. After ten years, the Restoration Application th No. 781 of 2016, was filed to recall the order dated 9 June, 2006.

th xxi. On 14 May, 2018, the Coordinate Bench passed an order, that if the substitution is not filed within time i.e. two weeks as given, the Second Appeal would stand dismissed without reference to the Bench, as no substitution was filed because Harnam Singh had th died in 1999 till the matter was taken up on