1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTON APPEAL FROM ORDER NO.503 OF 2010 Mr.Ramnarayan Jethmal Bhattad .. Appellant V/s Godavari Jaikisan Bang (deceased) through Legal Heir Shri.Shamsundar Jaikisan Bang & Anr. .. Respondents Mr.A.S.Kulkarni for the Appellant. Mr.Ajit Kenjale for Respondent No.1. CORAM: R.G.KETKAR, J. DATE: 24th September, 2010. P.C. 1. Mr.Kulkarni, learned counsel for the appellant seeks leave to amend the appeal memo so as to delete the name of Respondent No.2 from this appeal, as also for correcting the title of appeal memo. Leave granted. Amendment to be carried out forthwith. 2. This appeal is directed against the judgment and order dated 14th November, 2009 passed by learned District Judge-I, Karad below Exh.1 in Delay Condonation Application No.56 of 2006. By that order, learned District Judge dismissed the application for restoration of the appeal. 3. The appellant had preferred R.C.Appeal No.421 of 2000 challenging the judgment and decree dated 30th September, 1997 passed by learned 3rd Joint Civil Judge, Senior Division, Satara. Learned trial Judge decreed the suit and ordered that the Respondent herein is entitled to recover Rs.44,364.50 from the appellants-original defendants with future interest @ 15% 2 p.a.from the date of institution of the suit till realisation of the entire amount. 4. Initially, appeal was filed in the District Court at Satara on 11th February, 1997. Said appeal was subsequently transferred to the Additional District Judge. After the appeal was transferred at Karad, notices were issued to the appellants intimating them that date of hearing is fixed on 24th March, 2000. Notice was received by Appellant No.3-Radhyesham on 20th March, 2000. In so far as Appellant Nos.1, 2 and 4 are concerned, notices were returned unserved. Matter was adjourned for hearing of Exh.5 on various dates till 24th February, 2003. On 26th Ma;rch, 2003 appeal was fixed for depositing the paper book charges. As the Advocate for appellants did not deposit paper book charges, matter was adjourned to 26th June, 2003. On that date, Advocate for the Appellants made an application requesting time for depositing the paper book charges. Time was granted for depositing the paper book charges upto 14th July, 2003. Since the paper book charges were not deposited by that time, appeal was dismissed in default. 5. Appellants thereafter took out application for restoration of appeal as also for condonation of delay of 1453 days. By the impugned order, learned District Judge dismissed the application for restoration. 6. I have heard Mr.Kulkarni, learned counsel for the appellant and Mr.Ajit Kenjale, learned counsel for Respondent No.1. It is not in dispute that Respondent No.1 instituted Special Civil Suit No.91 of 1988. Said suit was decreed on 30th September, 1997 and it was held that the Respondent-original plaintiff is entitled to recover 3 Rs.44,364.50 from the appellants – original defendants with future interest @ 15% p.a.from the date of institution of the suit till realisation of the entire amount. It is not in dispute that the appeal was initially filed in the District Court at Satara and subsequently it was transferred to the Additional District Court, Karad. It is also not in dispute that one of the Appellants, viz. Appellnat No.3 Radhyesham was served and the Appellant Nos.1, 2 and 4 were not served. The matter was adjourned from time to time to enable the appellants to deposit the paper book charges. However the paper book charges were not deposited, with the result, appeal was dismissed in default. In my opinion, since the appeal was dismissed on technical ground and not on merits, learned District Judge should have restored the appeal by condoning the delay, subject to putting the appellant to terms. However, the learned District Judge dismissed the application for restoration of the appeal. In my opinion, interest of justice would be served if the appeal is restored by condoning the delay, subject to appellant depositing the amount of Rs.50,000/- in the District Court within a period of four weeks from today. Accordingly, Appeal is restored by condoning the delay, subject to the appellant depositing amount of Rs.50,000/- in the District Court within a period of four weeks from today. 7. If the appellant fails to deposit Rs.50,000/- within the stipulated time, the impugned order shall stand revived without further reference to the Court. 8. If the appellant deposits Rs.50,000/- within the stipulated time, the learned District Judge shall proceed to decide the appeal on its 4 own merits and in accordance with law. 9. Parties are at liberty to take out appropriate application for expeditious hearing of the appeal. If such an application is made, learned District Judge shall decide the same as expeditiously as possible, taking into account that the appeal is of the year 1997. 10.Mr.Kulkarni submitted that by order dated 11th February, 1999, learned Civil Judge, Senior Division, had granted stay to the execution of decree in Special Civil Suit No.91 of 1988 till the decision of the interim application. In view of directions issued by me to the appellant to deposit Rs.50,000/-, the interim stay shall operate during the pendency of the appeal and the interim application praying for stay of the decree passed in the suit shall stand disposed of. 11.Appeal from order stands disposed of in the aforesaid terms, with no order as to costs. In view of disposal of Appeal from Order no orders are necessary in the Civil Application No.736 of 2010 and the same stands disposed of. (R.G.Ketkar, J.)