IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.4548 of 2008. CIVIL APPLICATION NO.4548 of 2008. CIVIL APPLICATION NO.4548 of 2008. IN IN IN FIRST APPEAL NO.1917 of 2003. FIRST APPEAL NO.1917 of 2003. FIRST APPEAL NO.1917 of 2003. Smt.Indulnissa Abdul Majid ..Applicant/ Appellant versus Mohd. Issak Sher Mohammed & Another ..Respondents Shri N.Yadav i/b. R.C.Kaushik for the applicant Ms.S.R.Kadam i/b. Suresh Gole for the respondent No.1 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 23rd April, 2009. DATED : 23rd April, 2009. DATED : 23rd April, 2009. P.C. 1. Learned Advocate Mr. Yadav tendered xerox copy of the original Power of Attorney purported to have been executed by the appellant. The said xerox is taken on record. It is noted that the signature of the appellant is not found on the Power of Attorney above the word "Executant". (Such a signature should have been there) 2. Adjourned at 3.00 p.m. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) -2- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.4548 of 2008. CIVIL APPLICATION NO.4548 of 2008. CIVIL APPLICATION NO.4548 of 2008. IN IN IN FIRST APPEAL NO.1917 of 2003. FIRST APPEAL NO.1917 of 2003. FIRST APPEAL NO.1917 of 2003. Smt.Indulnissa Abdul Majid ..Applicant/ Appellant versus Mohd. Issak Sher Mohammed & Another ..Respondents Shri R.C.Kaushik for the applicant Shri Suresh Gole for the respondent No.1 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 23rd April, 2009. DATED : 23rd April, 2009. DATED : 23rd April, 2009. P.C. 1. By this Civil Application the applicant, original appellant wants that the Order of dismissal passed by this Court on 22.7.2008 as regards First Appeal No.1917 of 2003 be set aside and the appeal should be restored to the file of this Court and that the delay of 46 days should be condoned. The respondent No.1 has filed affidavit in reply opposing the prayers in the Civil Application. 2. In the morning learned advocate appearing on behalf of the applicant/appellant had tendered a xerox copy of the original Power of Attorney, on -3- the basis of which this Civil Application came to be filed and affirmed by one person Mr. Akhtar Ali, purported to be constituted attorney of appellant. The matter was kept back to enable learned Advocate Mr. R.C.Kaushik who was appearing for the appellant to come and argue the matter. 3. I have heard learned Advocates on both the sides. Learned Advocate Mr. Kaushik submitted that the original Power of Attorney executed in favour of Akhtarali by the appellant is in the other Court. He further confirmed that the xerox copy tendered in the morning is the xerox copy of the original power of attorney. With this submission he took me through the Power of Attorney which was tendered in the Court and submitted that the said Power of Attorney is duly executed by the appellant and hence should be acted upon. As against this, learned Advocate Mr.Gole submitted that the signature of the appellant is missing at the execution clause. He, therefore, submitted that the document which is being called as Power of Attorney is not properly executed and hence it cannot be acted upon and hence filing of the Civil Application by the appellant through Akhtar Ali is not proper and on that count the application should -4- be dismissed. 4. In reply to this Advocate Mr. Kaushik pointed out that the thumb impression of the appellant is below the word Advocate, High Court and he submitted that this should be treated as proper compliance as regards execution of the power of attorney. 5. Giving maximum concession to the appellant, the power of attorney which is sought to be relied upon cannot be treated as power of attorney duly executed by the appellant. Therefore, the power of attorney on which reliance is placed cannot be treated as Power of Attorney executed properly executed by the appellant. If this be so, execution of the power of attorney by the appellant through Akhtar Ali so called donee of the attorney cannot be considered as having properly filed. 6. If the above is the position, then the civil application filed by the appellant for restoration of the first appeal cannot be granted and the civil application will have to be dismissed. Hence the Order. ORDER ORDER ORDER -5- . Civil Application is rejected. In the facts and circumstances of the case, there shall be no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)