1 FARAD CONTINUATION SHEET. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. MISC.CIVIL APPLICATION NO.301 OF 2008. Smt.Kamlabai Joshi thr.L.Rs. .vs. Shrikant Jageshwar Joshi & anr. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, office Memoranda of Coram Court's or Judge's appearances, Court's orders or directions order and Registrar's order. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: C.L.PANGARKAR,J. DATE : 8th April, 2008. 1. Heard Mr.B.G.Kulkarni, Advocate for the appellant/applicants. 2. This is an application for restoration of the appeal, which came to be dismissed for default for not filing a paper-book within time. The application discloses that the court had passed an order on 27/11/2006 directing the appellant to file a paper-book within period of eight weeks. The order further states that if paper-book is not filed within period of eight weeks, the appeal shall stand dismissed without further reference to the court. The appellant submits that he was all the while under impression that period of 60 days is available for filing the paper-book and he, 2 therefore, filed the paper book on 25/1/2007. The Registry, however, found that the time had expired on 22/1/2007. The Registry, therefore, passed an order that the appeal stood dismissed on 22/1/2007. This order came to be passed by the learned Registrar on 20/07/2007. There was a delay in preferring this application for restoration which has already been condoned by this court. 3. The learned counsel for the appellant submits that there was a bonafide mistake in calculating the period of limitation available to him for filing the paper-book and he has no deliberate intention not to file the paper-book within time. It appears that the paper-book actually tendered before the Registrar on 25th January, 2007 and there is a significant delay of three days. 4. Learned counsel for the respondent contends that the appeal should not be restored to file unless and until the appellant deposits in the court the entire amount including the interest. He submits that the court should not exercise any discretion in favour of the appellant until that amount is deposited. According to him, the amount that was deposited by the appellant has 3 been appropriated towards interest and the principal amount is still due. 5. It may be mentioned that while admitting this appeal, this court by order dated 29/3/2000, directed the appellant to deposit a sum of Rs.2,35,744/- and on such deposit it granted stay. Subsequent to this, the respondent moved an application for modification of the order passed by this court on 29/3/2000. The court found that the amount that was directed to be deposited excluded the interest and the amount as directed has already been deposited and order did not require any kind of change or modification. The learned counsel for the appellant submits that this amount which has been deposited has already withdrawn by the respondent and there is no question of paying any interest further on the amount which is already in possession of the respondent from the date it was deposited. There is no question of directing the appellant to deposit the amount before this application can be granted. The court cannot put such a condition. The court had already granted stay to the judgment and decree on certain conditions. There is no need to modify them. The only question that is required to be seen here is whether there was a bonafide 4 mistake on the part of the appellant in calculating the time available and whether the delay in filing the paper-book was deliberate. It appears to me that the paper-book has been filed on 25/1/2007 instead of 22/1/2007. There is a delay of hardly three days. It cannot be said that it was an intentional or deliberate delay. In the circumstances, I find no substance in the argument of the respondents' counsel. The appeal stands restored to file. List the matter for final hearing. JUDGE chute