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Appeal dismissed in default-resotration (Civil Law)

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This query is : Resolved


Author : VISHNU

Posted On 03 October 2011 at 17:31

Sir

The appeal dismissed in default. Appellant filed application to restore appeal to original number. Appeal on hearing. Respondent taken up Preliminary objection that earlier appeal was already time barred and hence now it can not be restored as no application for condonation of delay was filed with appeal then.
kindly put opinion legal case law on this matter settled by any court. Whether time barred appeal dismissed in default can be taken up and again heard even if it is time barred appeal? The matter is between court and appellant or respondent can also put points on restoration application before court? Is it mandatory that same judge who dismissed the appeal in default shall decide now present restoration application?
Pls elaborate




Expert : adv. rajeev ( rajoo )

Posted On 03 October 2011 at 18:56

delay in filing appeal doesn't apply to the restoration petition. Restoration application is only about the restoration of the dismissed appeal



Expert : prabhakar singh

Posted On 03 October 2011 at 19:05

You want to say a time barred appeal was dismissed in default.
restoration is applied for.
objection raised is that since appeal it self is time barred,restoration does not lie.

the objection is not tenable because at this point of time the only point under consideration before the court is whether or not the cause shown for restoration is sufficient or not.

because even after restoration the appellants have a chance to move a condonation application u/s 5 of limitation Act to condone the delay caused in filing the appeal.

Right to say is with both parties at this stage.



Expert : Arun Kumar Bhagat

Posted On 03 October 2011 at 19:53

I differ with the advice of Mr. Prabhakar Singh, expert. An appeal can not be dismissed for default. It has to be decided on merit at any cost even if the appellant does not appear. But in this case no petition for delay was filed so the appeal shall be construed as dismissed as time barred.



Expert : Advocate. Arunagiri

Posted On 03 October 2011 at 21:21

The restoration petition is maintainable.

The original appeal is not maintainable as it is time barred and no condone delay petition is not filed.




Expert : prabhakar singh

Posted On 03 October 2011 at 21:38

The Author begins with words "The appeal dismissed in default"

If some one is lost how can i help him .dismissal in default of appeals is as routine a business in courts as is that of a suit.

And here not prabhakar singh but author him self is saying his appeal has been dismissed in default,Mr. A run k umar B hagat!! ""YOU SHOULD HAVE WRITTEN I CAN NOT ACCEPT AN APPEAL CAN BE DISMISSED IN DEFAULT HENCE NO ANSWER "".


Every one has a right to hold his own opinion.But it must not look the opinion inherently lacks some thing.



Expert : prabhakar singh

Posted On 03 October 2011 at 21:59

One who takes pain to understand facts can arrive at a right answer.



Expert : raj kumar makkad

Posted On 03 October 2011 at 22:24

Instead of going into 'fighting'; I directly come on query and opine that objection qua time barred original appeal cannot be raised while replying to the restoration application as this plea is beyond merits and raised untimely.



Author : VISHNU

Posted On 04 October 2011 at 10:22

Dear Sir

we extend thanks for the great pain taken to jot down opinions and the sincere efforts are appreciated by heart. Excellent.
Thanks for answering the query


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