1 ca 5295.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 5295 OF 2009 IN SECOND APPEAL NO. 618 OF 2006 1. Yogesh Gotugir Buwa and others .. Applicants Versus Prayaggir Purushottam Buwa .. Respondent Shri P. S. Shendurnikar, Advocate for Applicants. Shri A. K. Tiwari and Shri P. R. Patil, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 25TH MARCH, 2011. PER COURT : . This is an application for restoration of the second appeal to its original position. The second appeal was dismissed on the count of fact that, the applicants failed to comply the order directing the applicants to file the paper book within the stipulated period. The same was a conditional order. The learned counsel for the non applicant states that the order was self operating order and as the order was self operating order the 2 ca 5295.09 appeal cannot be restored. The learned counsel relied on the judgment of the Apex Court in the case of Samir Mukherjee vs. Devinder Kumar Bajaj and others reported in (2005) 9 S.C.C. 740. The learned counsel also further contended that in fact, the applicants have moved the matter after one year. The decree is for possession. The applicants are enjoying the possession and there is stay to the possession, as such, the applicants are protracting the matter intentionally. 2. The appeal involves the rights of the parties in an immovable property. The second appeal has been admitted by this Court on substantial question of law. The applicants cannot be non suited on technical grounds. The judgment of the Apex Court in case of Samir Mukherjee referred supra relied by the learned counsel for the respondent was in fact of the said case wherein the party was directed to deposit the amount, failure to deposit the amount within stipulated period, in that light of the matter, the Apex Court had observed that as the appellant therein failed to comply the Courts order, the stay had to be vacated. The learned counsel for applicants in the present matter states that he has already complied the said order and has filed the paper book in this Court. In that light of the 3 ca 5295.09 matter, I am inclined to allow the application. The civil application is allowed in terms of prayer clauses "B" and "C" on condition that applicants pay cost of Rs. 2,000/- to the non applicant within a period of four weeks from today. The civil application is disposed of. [ S. V. GANGAPURWALA, J. ] bsb/March. 11