Case Note & Summary
The matter concerned an interim application in the High Court of Judicature at Bombay, Civil Appellate Jurisdiction, arising from a second appeal. The appellant, Baburao Madahv Patil (since deceased through legal representatives), had filed Interim Application No.3880 of 2019 in Second Appeal No.664 of 1992, seeking condonation of 76 days delay and restoration of Civil Application (St.) No.27172 of 2018, which had been dismissed as a rejected case. The underlying civil application sought impleadment of Respondent Nos.4a and 4b as legal heirs of deceased Respondent No.4 and consequential amendment. The second appeal had a long procedural history: it was first dismissed on 1 September 2016 for non-appearance, restored on 28 July 2017 with a direction to remove office objections within one week and list for admission on 14 August 2017, and then dismissed again by the Registrar's order on 18 July 2018 for non-removal of office objections. The civil application was dismissed on 13 November 2019 because the advocate did not remove office objections within the stipulated time. On 15 September 2023, the interim application came up for hearing. The applicant's advocate requested that the application be allowed in terms of prayer clause (a) and also sought stay of execution proceedings, relying on paragraph 5 of the order dated 28 July 2017, on the premise that the second appeal was alive. The court, after perusing records, found that the second appeal had been dismissed on 18 July 2018 and had not been restored. The advocate was aware of this fact because the praecipe dated 3 July 2023 for urgent circulation itself stated that the applicant sought to restore the second appeal. The court held that a stay of execution could only be granted if the second appeal was in existence, and since it was not, the request was improper. The court then examined the prayers in the civil application and interim application and found that neither contained a prayer for restoration of the second appeal. Therefore, the interim application seeking restoration of the ancillary civil application was futile and not maintainable. The court dismissed the interim application. It also made general observations about the need for senior advocates to properly brief juniors and for juniors to study the record before appearing, to avoid misleading the court. The final order dismissed Interim Application No.3880 of 2019, as no steps had been taken for restoration of Second Appeal No.664 of 1992, which remained dismissed.
Headnote
A) Civil Procedure - Restoration of Civil Application - Maintainability When Main Appeal Dismissed - General Civil Procedure (No specific statute cited) - The applicant sought restoration of Civil Application (St.) No.27172 of 2018 for impleading legal heirs of deceased Respondent No.4 and for amendment, but the main Second Appeal No.664 of 1992 had already been dismissed on 18 July 2018 for non-removal of office objections and was not restored. The civil application and the interim application contained no prayer for restoration of the second appeal. Held that restoration of an ancillary application was futile without restoration of the parent appeal, so the interim application stood dismissed (Paras 4-11). B) Legal Ethics - Duty of Advocates to Disclose Material Facts - Advocate Conduct - General Professional Conduct (No specific statute cited) - The applicant/appellant's advocate requested stay of execution proceedings relying on a prior order dated 28 July 2017, while knowing that the second appeal had been dismissed on 18 July 2018, as evidenced by the praecipe dated 3 July 2023. The court observed that the request was improper because execution could only be stayed if the second appeal was in existence. Held that senior advocates must properly brief juniors, and juniors must study the record to avoid misleading the court; the court expressed hope that this guidance would be followed (Paras 8-10). C) Civil Procedure - Condonation of Delay and Restoration - Dismissal for Non-Removal of Office Objections - General Civil Procedure (No specific statute cited) - The applicant sought condonation of 76 days delay and restoration of Civil Application (St.) No.27172 of 2018, which was dismissed as a rejected case on 13 November 2019 for non-removal of office objections. The court noted that the main second appeal had been dismissed on 18 July 2018 and the applicant had not taken steps to restore it. Held that the interim application was dismissed because no steps had been taken for restoration of Second Appeal No.664 of 1992 and the dismissal order remained effective (Paras 1-9).
Issue of Consideration
Whether the delay of 76 days in restoring Civil Application (St.) No.27172 of 2018 should be condoned; whether the interim application for restoration of that civil application can be allowed when Second Appeal No.664 of 1992 was already dismissed on 18 July 2018 and had not been restored; whether the applicant/appellant's prayer for stay of execution proceedings was maintainable when the second appeal was not pending
Final Decision
Interim Application No.3880 of 2019 was dismissed because the Second Appeal No.664 of 1992 had already been dismissed on 18 July 2018 and not restored; the civil application and interim application contained no prayer for restoration of the second appeal.
Law Points
- An application for restoration of an ancillary civil application is not maintainable when the main second appeal stands dismissed and no prayer for its restoration has been made
- execution proceedings cannot be stayed in a second appeal that is no longer pending
- advocates must disclose material facts and not seek relief based on a non-existent appeal
- office objections must be removed within stipulated time to avoid dismissal as rejected case
