HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

Pronounced On: 06/04/2021.

IA no. 01/2018

APCIV No. 61/2018

State of J&K through Chief Secretary

…..Petitioner(s)/Applicant(s)

Through: -

Mr. Ayjaz Lone, Dy.AG.

V/s

Vinnay Chawla and Ors.

…..Respondent(s)

Through: -

Mr.K. S. Johal, Sr. Advocate with

Mr. Karman Singh Johal, Advocate.

CORAM:

Hon’ble Mr. Justice Javed Iqbal Wani, Judge.

JUDGEMENT

1.

This order shall dispose of the instant application being filed by the

applicant under Section 151 Cr.PC for recalling of order dated

30.12.2017 where under restoration application being 05/2017 filed

for re-admission of appeal bearing No. 25/2011 had been dismissed.

2.

Heard learned counsel for the parties and perused the record.

3.

Learned counsel for the parties reiterated their submissions in tune

with their respective pleadings.

4.

While learned counsel for the applicant prayed for recalling of the

order dated 30.12.2017,on the grounds urged in the application, the

counsel for the non-applicant insisted for dismissal of the application

inter-alia amongst others, fundamentally on the ground that the

application is not maintainable.

5.

Before adverting to the application in hand ,a brief resume of the case

which emerges from the record is that a first appeal had been filed by

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the applicant herein against the judgement and decree passed by the

court of District Judge Samba in File No. 50/Samba dated 20.04.2009

in favour of respondents/non-applicants being CIA No. 25/2011.

6.

The said appeal had got dismissed for non-prosecution on12.07.2016.

The dismissal of the appeal resulted into filing of an application for

execution of the decree by the plaintiffs/respondents herein prompting

the appellant/applicant herein to file an application for re-admission of

the appeal being 05/2017. The said application being time bared had

been accompanied with an application for condonation of delay. The

said condonation of delay application had been allowed in terms of

order dated 06.06.2017 and restoration application directed to be

diarized.

7.

During the pendency of the said restoration application, MP No.

02/2017 is filed by the plaintiffs/non-applicants herein for

releaseRs.05 lacs of decreetal amount which had beendeposited by the

applicant herein before this court pursuant to an order dated

29.03.2017.

8.

The application for restoration supra had been dismissed by this court

for non-prosecution on 30.12.2017. The said order is sought to be

recalled through the medium of the instant application.

9.

On 23.05.2018 the date of issuance of notice in the application in

hand, decreetal amount deposited before this court by the applicant

herein was directed to be released in favour of the plaintiffs/non-

applicants herein subject to an undertaking that in case the applicant

herein succeeds in the appeal the amount so received by the non-

applicants herein shall be reimbursed with interest.

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10.

The inherent powerof this court under Section 151CPC is being

invoked in the instant application for the reasons detailed out

thereinwhich are extracted and reproduced in extenso along with

accompanied affidavit here under:

The applicant most respectfully submits as under:-

1.That the above titled execution petition was listed in the

Hon?ble Court for hearing on 12.03.2018. Through this

execution petition/application on 12.03.2018 for the First

time, appellant came to know that restoring application

filed for restoration of appeal has beendismissed for non-

prosecution. It may be specifically stated that the