IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.703 of 2008 MOST. SHRIKANTI DEVI & ORS Versus HARIHAR PRASAD SINGH & ORS ----------- 5. 22.04.2009. I.A. No. 6283 of 2008: In view of the averments made in paragraph no.3 of this Interlocutory Application that in F.A. No.336 of 1997, Dinesh Singh was already substituted in place of the deceased respondent/opposite party no.1 Harihar Prasad Singh and final decree was also accordingly amended but this fact could not be incorporated in this restoration application or in final decree where Harihar Prasad Singh is mentioned as respondent-opposite party no.1. Later on, Rani Devi died on 12.6.1998 leaving behind her heir Dinesh Singh. In such view of the matter, learned counsel for the appellants is permitted to make correction in this restoration application by way of striking the name of deceased respondent- opposite party no.1 Harihar Prasad Singh and mention in his place the name of heir Dinesh Singh in his place. The correction was made in course of the day. Accordingly, I.A. No. 6283 of 2008 is allowed. This restoration application has been filed for restoration of First Appeal No.336 of 1997 which stood dismissed due to non- compliance of the peremptory order dated 24.1.2005 which directed for filing of certified copy of the judgment under appeal within two weeks failing which the Memo of Appeal shall stand rejected without - 2 - further reference to a Bench. In the restoration application, a further prayer under Section 5 of the Limitation Act has also been made for condoning the delay in filing of this application on the ground as mentioned in the petition. As also mentioned in the petition, learned counsel for the appellants submits that Dr. Ratan Kumar, the then learned counsel appearing on behalf of the appellants could not be able to appreciate the peremptory order under the premise that it was under appeal against a final decree in which the judgment is not separately passed by the court, hence, he was not sure that the judgment of the court was also required to be filed. Learned counsel also raises a point that in view of the Rule 1 of order XLI as it is stood prior to amendment of the Code of Civil Procedure in the year 1999 and to which period this appeal relates, the filing of the copy of the judgment was not mandatory and that discretion lay with the appellate court to dispense with the filing of the judgment. Be that as it may, any view can not be finally expressed in this restoration application. Any way considering the facts and circumstances, the delay in filing of the restoration application is condoned under a condition precedent that the appellants will deposit a sum of Rs. 250/- to the Secretary, “High Court Legal Services Committee,Patna” within two weeks from today and file a receipt in support thereof in the office. The restoration application is allowed and F.A.No.336 of - 3 - 1997 will be restored to its original file subject to the compliance of the condition precedent laid down in this order. F.A. No. 336 of 1997 will stand restore with a liberty to the appellants to raise the question of dispensing with the filing of the judgment of the court below. This restoration application is, accordingly, allowed. U.K. (C.M.Prasad,J)