IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.912 of 2007 SUJEET KUMAR SINHA Versus SANJAY KUMAR SINHA & ORS ----------- 12. 23.9.2008. This application has been filed to restore the First Appeal No.260 of 2005 which was dismissed for default for not complying with the office notes, which were to remove the defects in the appeal. The First Appeal No. 260 of 2005 was listed on 30.10.2006, no body appeared on that date. On 9.11.2006 again the counsel for the appellant did not appear and the defects were also not removed, and as such, the First Appeal No. 260 of 2005 was dismissed. On the face of it, the prayer to restore the First Appeal seems innocuous, however, the facts would reveal differently. The dispute arises out of a Partition Suit No. 201/1992. First Appeal No.193 of 2002 was filed by Sanjay Kumar Sinha against the preliminary decree. This First Appeal was dismissed for default. The restoration application of First Appeal No. 193 of 2002 was filed by Sanjay Kumar Sinha which was numbered as M.J.C.No.1185 of 2004. Sanjay Kumar Sinha withdrew the restoration application. Therefore, the First Appeal against the preliminary decree stood dismissed and the order of dismissal became final. Thereafter, Prem Kumar Sinha filed First Appeal against the final decree numbered as First Appeal No.243 of 2003. In the said First Appeal, the present petitioner Sujeet Kumar Sinha filed an application under Order XXXIX Rule 1 praying the parties should be prevented from selling or in any way creating encumbrance on the - 2 - property. The application for injunction was dismissed by this Court on 14.9.2004. Against the order refusing injunction, Sujeet Kumar Sinha filed an S.L.P.(C)No. 22472 of 2004. In the meantime, the First Appeal No. 243 of 2003 also stood dismissed and thus the Supreme Court dismissed the S.L.P. on 22.7.2005. Sujeet Kumar Sinha respondent in First Appeal filed a restoration application numbered as M.J.C.No.2769 of 2004 for restoring the First Appeal No.243 of 2003. The restoration application, so filed by Sujeet Kumar Sinha was also dismissed on two grounds. Firstly, it was held that the restoration application was not maintainable by the respondents and secondly the argument that the petitioner Sujeet Kumar Sinha had filed a cross appeal was rejected as the cross appeal was filed on 23.11.2004, after dismissal of the First Appeal No. 243 of 2004. The petitioner challenged the order dismissing the restoration application M.J.C.No.2769 of 2004 on 20.5.2005, an S.L.P. was filed in the Supreme Court which was dismissed by the Apex Court on 18.8.2005. In the meantime, Execution Case No. 9 of 2004/ 1 of 2004 proceeded and finally by order dated 27.3.2006, the final decree passed in the partition suit, was satisfied and all the parties were put in possession as per the judgment of the final decree which would apparent from the order of the executing court dated 27.3.2006. From the aforesaid facts, it is clear that the First Appeal against the preliminary decree was dismissed and the First Appeal against the final decree also stood dismissed on 14.9.2004. The First - 3 - Appeal No. 260 of 2005 for which the restoration application has been filed is also against the final decree. It appears that Sujeet Kumar Sinha was well aware of dismissal of the First Appeal No.243 of 2003 against the final decree of partition, as he had taken steps for restoration of that First Appeal. On perusal of the First Appeal No.260 of 2005, it appears that it is time barred by limitation , however, the final stamp report has not been done as yet as the F. A. No. 260 of 2005 also stood dismissed on 9.11.2006. Learned counsel appearing on behalf of the petitioner has submitted that this Court including the Supreme Court are liberal in restoration matter if, proper cause is shown. However, in this case, there is already an order right up to the Supreme Court dismissing the First Appeal against the final decree and the second attempt to rekindle the facts of this case would be stretching the law and would amount to misusing the provision of the Code of Civil Procedure and the Limitation Act. In the circumstances, the application for restoration of First Appeal No.260 of 2005 stands dismissed. U.K. (Sheema Ali Khan,J)