D/L.11 & 12. April 28, 2025. MNS. SA No. 179 of 1998 + CAN 3 of 2024 with CR 4033 of 1991 + CAN 1 of 2000 (Old CAN 3131 of 2000) + CAN 2 of 2010 (Old CAN 10611 of 2010) Sitaram Mandal (since deceased), represented by his heirs and legal representatives Abhoy Kumar Mandal and others Vs. Lakshmi Mandal (since deceased), substituted by respondent nos. 9, 10, 11, 12 and 13) and others Mr. Pritam Choudhury … for the appellants. Mr. Dilip Kumar Maity …for the respondent nos. 10 to 13. Re : CAN 3 of 2024 (condonation of delay) & CAN 2 of 2010 (Old CAN 10611 of 2010) (restoration application) 1. CAN 3 of 2024 is an application for condonation of delay in filing CAN 2 of 2010 (Old No. CAN 10611 of 2010), which is a restoration application. 2. Learned counsel for the appellants places reliance on the averments made in the application for condonation of delay and submits that the original appellant no. 1, who was looking after the matter, was brutally murdered by some of the respondents. Two of the respondents have already been convicted on such count. Thus, the family members of the said 2 deceased appellant, being the present petitioners, were in absolute disarray and had to stay away from their residence due to the threats on their respective lives and it was only after the accused (since convicted) were sentenced that the petitioners could resurface. 3. Learned counsel appearing for the respondents argues that there is lack of sufficient explanation for the delay in preferring the present restoration application. That apart, it is submitted that the period of delay has been erroneously mentioned in the application under Section 5 of the Limitation Act. 4. We find from the orders annexed to the affidavit-in- opposition that the reason for the dismissal of the appeal for default by the order dated June 15, 2006 was that the appellants had not carried out two directions in terms of the previous orders of coordinate Benches of this court. First, regarding service of the application for substitution, there was initial inaction on the part of the appellants, although subsequently such service seems to have been effected thereafter. Secondly, no application was filed indicating that the respondent nos. 11 to 13 had since attained majority. 5. We further find from the submissions of learned counsel and the records that the said reason has now been rendered academic in view of the substitution application itself having been allowed after setting aside abatement on condonation of delay in making the same. That apart, the fact that the respondent nos. 11 to 13 have attained majority is an admitted 3 position, since they are now represented in their own capacity by counsel, and is evident from the facts of the case. 6. We find that the reasons for the delay in preferring the restoration application as shown are sufficient, inasmuch as the appellant no. 1, who was looking after the appeal, had died during the relevant period. Two of the respondents have even been convicted for the murder of the said appellant. 7. That apart, the mere erroneous mention of the period of delay in one of the paragraphs of the application is not crucial inasmuch as the entire extent of the delay has been sufficiently explained in the application. 8. Moreover, since the deceased respondents have already been substituted by their heirs, who are already on record, we do not find any reason to attribute mala fides on the appellants for preferring the restoration application late, particularly since due to the murder of the appellant no. 1, there is every chance that the appellants were hiding and not in a position to prefer the application earlier. 9. Accordingly, upon being satisfied that there were sufficient reasons for filing the restoration application late, we allow CAN 3 of 2024, thereby condoning the delay in filing CAN 2 of 2010 (Old No. CAN 10611 of 2010), which is also allowed on contest, thereby restoring the appeal to its original file and number. 10. It is further noticed that in the order dismissing the appeal dated June 15, 2006, the interim orders then subsisting were 4 not vacated. Accordingly, the interim orders granted at that juncture automatically revive as on this date on the restoration of the appeal. 11. There will be no order as to costs. 12. Since the appeal has already been admitted earlier, the appellants are directed to file the necessary number of informal paper books without comparing with the records within four weeks from date. 13. The appellants shall also put in due special messenger costs for bringing the trial court records by special messenger. Such costs shall be deposited within a week from date as well. 14. Furthermore, the appellants shall deposit postal costs and requisites for service of notice of appeal on the non- appearing respondents within a week from date. 15. Liberty is given to the parties to mention the second appeal for hearing before the appropriate learned Single Judge then having determination, as and when the appeal is ready for hearing. (Uday Kumar, J.) (Sabyasachi Bhattacharyya, J.)