Allowed

Kalu Singh v. Latu

Rajasthan HC12 Jan 2023CRES/1/2023

Case brief

AI extract

What is this about?

The High Court of Rajasthan at Jodhpur allowed the restoration of a dismissed civil miscellaneous appeal after condoning a delay of 2007 days. The court held that the defect regarding the compensation certificate deposit was redundant and condoned the delay under Section 5 of the Limitation Act. The appeal was restored to its original number and listed, directing the removal of the second defect.

What did the court decide?

Restoration application allowed under Section 5 of the Limitation Act; appeal restored to original number and listed after two weeks for removal of defects.

Kalu Singh Vs Latu — Execution and Attachment | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Civil Restoration No. 1/2023

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Kalu Singh S/o Shri Balam Singh, Aged About 60 Years, By Caste Rajput, Resident of Phalsoond, Tehsil Pokaran, District Jaisalmer.

¶5

Rewat Dan S/o Shri Shambhu Dan, Aged About 39 Years, By Caste Charan, Resident of Bhikhodai, Tehsil Pokaran, District Jaisalmer.

¶6

Najre Khan S/o Jusab Khan, Aged About 24 Years, Resident of Balad, P.S. Phalsoond, Tehsil Pokaran, District Jaisalmer. (Since Deceased) (Expired on 01-06-2021)

¶7

----Petitioners

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Versus

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Smt. Latu Widow of Late Sheru Khan @ Sher Mohd., By Caste Musalman, R/o Chandna Bhakar, Jodhpur.

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Dhuli D/o Late Sheru Khan @ Sher Mohd., By Caste Musalman, R/o Chandna Bhakar, Jodhpur.

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Heero D/o Late Sheru Khan @ Sher Mohd., By Caste Musalman, R/o Chandna Bhakar, Jodhpur.

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Shoukat Khan S/o Late Sheru Khan @ Sher Mohd., By Caste Musalman, Minor Through Their Natural Guardian Mother Smt. Latu, R/o Chandna Bhakar Jodhpur.

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Pappu D/o Late Sheru Khan @ Sher Mohd., By Caste Musalman, Minor Through Their Natural Guardian Mother Smt. Latu, R/o Chandna Bhakar Jodhpur.

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Nazma D/o Late Sheru Khan @ Sher Mohd., By Caste Musalman, Minor Through Their Natural Guardian Mother Smt. Latu, R/o Chandna Bhakar Jodhpur.

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Smt. Kasumbi W/o Samu Khan, By Caste Musalman, Minor Through Their Natural Guardian Mother Smt. Latu, R/o Chandna Bhakar Jodhpur.

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Cholamandlam MS General Insurance Company Ltd., through its Manager, 17 KP Tower, Chopasani Road, Jodhpur.

----Respondents

(2 of 3)

[CRES-1/2023]

For Petitioner(s)

: Mr. Anil Kumar Bhandari

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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12/01/2023

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The present application has been preferred for restoration of S.B. Civil Misc. Appeal No.1578/2013. The said application is reported to be delayed by 2007 days and an application under Section 5 of the Limitation Act has been filed for condonation of the said delay.

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The appeal was dismissed vide order dated 18.05.2017 passed by the Dy. Registrar (Judicial) in pursuance to the peremptory order dated 23.03.2017 passed by the Court. Vide order dated 23.03.2017, learned counsel for the appellants was granted three weeks’ time to remove the defects and in failure to do so, the appeal was directed to be dismissed automatically without reference to the Court.

¶27

Learned counsel for the appellants submitted that the defects as pointed out by the office in the appeal were: firstly , regarding the compensation certificate under Section 173 of the Motor Vehicles Act having not been filed, secondly , the age of the deponent in the affidavit was not mentioned. Learned counsel submitted that in terms of Section 173 of the M.V. Act, the appellant-Owner was not required to deposit the amount of Rs.25,000/- as he was not the person required to pay the amount in compliance of the Award.

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Vide the award, the Insurance Company was directed to pay the compensation amount to the claimants and was held entitled

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(3 of 3)

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[CRES-1/2023]

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to recover the same from the owners. Therefore, the owners were not required to deposit the amount of Rs.25,000/- and hence, the defect as pointed out by the office was redundant and was required to be overruled. He further submitted that it was only when the warrants for attachment were issued and served, the appellants came to know that the appeal preferred by them has been dismissed.

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In view of the submissions made and in view of the fact that the first defect as pointed out by the office was even otherwise not liable to be removed by the appellants, the delay caused in filing the present restoration application is condoned. The application under Section 5 of the Limitation Act is allowed accordingly.

¶33

Consequently, the present restoration application is allowed . S.B. Civil Misc. Appeal No.1578/2013 is restored to its original number and be listed after two weeks. Meanwhile, the second defect as pointed out by the office in the appeal be removed.

¶34

(REKHA BORANA),J

¶35

40-Sachin/-

Kalu Singh v. Latu

Case brief

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Kalu Singh v. Latu

Case brief

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