1 caf3097 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.3097 OF 2005 IN FIRST APPEAL NO.881 OF 1994 Jahangir Khan Munna Khan (since deceased through L.Rs) ...Applicants vs. 1(a) Shamabi Sayed wd/o Mushraf Hussain & Ors. ...Respondents Mr.A.G.Damle for the applicants Mr.H.S.Venegavkar for the respondent no.1A, 1B, 1D and 1E CORAM : A.S.OKA,J. DATE : APRIL 19,2011 P.C.: 1 Heard learned counsel for the applicants and the learned counsel for the respondents. The applicants are the legal representatives of the original defendant. The respondents are the plaintiffs who are the appellants in the First Appeal. On 31st January 2005, the First Appeal was dismissed in default when the same was called out for final hearing. Neither the Advocate for the applicants nor the Advocate for the respondents was present. It appears that the civil application no.567 of 2005 was taken out by the respondents for restoration of the appeal. The said civil application was allowed on 28th February 2005. The appeal was taken up for final hearing on the same date and the appeal has been allowed. 2 The present application is taken out by the applicants for setting aside the exparte decree passed in the appeal. The applicants have invoked Rule 21 of Order XLI of the Code of Civil Procedure,1908. The contention 2 caf3097 of the applicants is that the notice of application for restoration was not served to the respondent (predecessor of the applicants) in the appeal and even the notice of the appeal after its restoration was not served and therefore, the respondent in the appeal was prevented from appearing at the time of final hearing of the appeal. The application is opposed by the Respondent. It is contended that when the appeal was dismissed on 31st January 2005, the Advocate for the predecessor of the applicants was absent and therefore, no grievance can be made that the notice of application for restoration was not served. He submitted that after restoration of the appeal, the Court immediately proceeded to hear the appeal itself and therefore, the respondents cannot be blamed if notice of restoration of the appeal was not served. 3 I have considered the submissions. The predecessor of the applicants was represented by an Advocate in the appeal. It is true that when the appeal was dismissed, the Advocates appearing for both the parties were absent. Even if notice of application for restoration of the appeal was not served to the respondent in the appeal, at least notice of the appeal after its restoration ought to have been issued to the respondent in the appeal. As the respondent in the appeal was not aware that the appeal was restored and was taken up for final hearing, he could not remain present at the time of final hearing of the appeal. Thus, the respondent in the appeal was prevented by sufficient cause from appearing before the Court when the appeal was heard finally. In the circumstances, the exparte decree in the appeal will have to be set aside. 4 Accordingly, I pass the following order : 3 caf3097 i) Judgment and Decree dated 28th February 2005 is quashed and set aside and the First Appeal no.881 of 1994 is restored to the file of this Court. ii)The appeal shall be added to the appropriate final hearing board of the First Appeals to be notified for June 2011. JUDGE