1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1594 OF 2010 IN FIRST APPEAL NO. 1700 OF 2007 Rajarani @ Rani D. Khosla & ors ........Applicant/appellant versus Omkareshwar Construction Co. & ors........Respondents. Mr. Sameer Tendulkar adv. for the applicant/appellant. Mr. Chetan S. Damse i/b S.K.Shinde adv. for the Respondent. CORAM: A.P. DESHPANDE AND SMT. R.P. SONDURBALDOTA, JJ. DATED : 26th April, 2010. P.C.: 1. By the present application the applicant/appellant is seeking setting aside of the orders dated 13-4-2010 passed in C. A. No.2552/07 and C.A No. 571/09. C.A. No. 2552/07 was moved for staying execution of the money decree passed in favour of the respondent way back in September 2006. On account of pendency of this appeal the decree was not executed. As the counsel for the applicant was absent on 29-3-2010 with a view to afford one more opportunity the 2 matter was adjourned to 13-4-2010. on 13-4-2010 on account of repeated absence of the counsel the application was dismissed for non prosecution. 2. C. A. no. 571/09 was moved by the respondent for withdrawal of the sum of Rs. 8 lacks which were deposited by the applicant during pendency of the appeal in this court under the orders passed by this court. It will not be out of place to mention that the decree is for a sum of Rs. 21 lacks together with 9% interest and only a sum of Rs. 8 lacks were deposited. Thus by an order dated 13-4-2010 we had permitted the respondent to withdraw the sum of Rs. 8 lacs. Having realized that hardly any objection could be taken to the said order, the learned counsel for the applicant does not press the latter part of the prayer (a) marked by red, and restricts his prayer only for setting aside the order whereby the applicant’s application for stay came to be rejected. 3. The learned counsel for the respondent opposes restoration of the stay application viz. C.A. No. 2552/07. In view of the conduct of the applicant in not pressing the prayer for recalling of the order, permitting withdrawal of Rs. 8 lacks by respondent, and for the reasons stated in the application, we deem it just and proper to set aside the order dismissing the C.A. No. 2552/07 for non prosecution. 4. In the result, for the reasons stated in the application the order dated 13-4-2010 passed in C.A. 2552/07 dismissing the application for non prosecution is set aside 3 and the application stands restored to file. Stand over after vacation. (A.P.DESHPANDE, J.) (SMT.R.P. SONDURBALDOTA, J.)