UNITED BANK LTD. Versus MAHMOOD SHAH

ORDER

This appeal was dismissed on 23‑12‑1985 for non‑prosecution. The restoration application was filed on 20‑10‑1986 with the allegations that the appellant's counsel being an Advocate from Hyderabad did not have the notice of the same. The counter‑affidavit was filed by the respondent that the notice has been issued by the High Court for relevant date and that the Advocate for the respondent had received the said notice and an application for hearing at Hyderabad had been moved and also an application for amendment was moved by the respondent's counsel and the counsel for the appellant had stated no objection to the same. Rejoinder affidavit was also' filed by the appellant's counsel to the effect that in fact he had no knowledge of the hearing and he had given his consent to the application for adjournment without looking at its contents.

I found that no objection of appellant's counsel on application under Order 17, Rule 1 bears the date of 23‑12‑1985 which clearly shows that the appellant's counsel was at Hyderabad on 23‑12‑1985 when he consented to the adjournment. This signature suggests that the appellant's counsel had been unaware that the matter was actually fixed on 23‑11‑1985 as otherwise it was useless to consent to an application on 23‑12‑1985 at Hyderabad. I accept the statement of the counsel of the appellant that he had not received the notice which was issued from the Court and that he was not aware of the date of hearing being 23‑12‑1985. The application under Order 17 does not bear any date and hence the appellant could not be burdened with knowledge of 'the date of the hearing being 23‑12‑1985. In any case there seems to be obvious misunderstanding and, therefore, the appellant should not be burdened with the knowledge of the hearing of the appeal on 23‑12‑1085. This being the position, Order 41, Rule 17 cannot be attracted to the case as held in A I R 1962 All. 622 and hence application under section 151, of C.P.C. could be filed even after 30 days to get the appeal restored. Mr. Obaidullah, Advocate had relied upon A I R 1964 All.

124. But the distinction in that case is that the intimation was duly received by the appellant's counsel of the date of hearing, therefore, this case is distinguishable. Since section 151, C . P. C . would obviously be attracted in respect of moving an application for restoration in such circumstances, therefore, the residuary Article‑181 of Limitation Act shall be applicable, I, therefore, restore this appeal and allow this application.

H.B.T./U‑24/K Appeal restored.