- (1.)The appellant has taken exception to the judgment and order dated 9th July, 1993 passed by the learned Addl. District judge, Kolhapur in Misc. Application No. 208 of 1992. The appellant is the original defendant. The suit filed by the respondents was decreed by the trial court on 17th September, 1987. An appeal was preferred by the appellant in the district Court for challenging the Judgment and Decree of the trial Court. The said appeal was admitted and on 17th November, 1982. The appellate Court stayed the execution of the decree passed by the trial Court. When the appeal came up for hearing on 28th July, 1992, the appellant and his Advocate were absent and therefore, the appeal came to be dismissed for default.
(2.)An application was moved by the appellant under Order LXI Rule 19 of the Code of Civil Procedure, 1908, (hereinafter referred to as "the said Code") for setting aside the order of dismissal and for readmission of the appeal. The said application was opposed by the respondents. The application for restoration was filed on 18th September, 1992 on various grounds. The main ground was that the appellant was a very old man and due to his old age he did not contact his advocate every now and then. According to the appellant he was under the impression that whenever the matter would come up for hearing, his advocate would inform him about the date fixed for the hearing. The said advocate did not inform him about the date fixed for hearing and therefore, he did not attend the appeal on the date when it was fixed for hearing. This application has been rejected by passing the impugned order. 2a. Initially the appellant filed Civil Revision Application No. 939 of 1993 for challenging the impugned order. On 29th October, 1993 Rule was issued and interim relief was granted in terms of prayer clause (c). On 25th April, 1996 the revision Application came up before this Court. On Civil Application No. 4292 of 1995 filed by the appellant, this Court allowed the said Civil Revision application to be converted in appeal from Order. The office was directed to register an appeal from Order. Though a formal order of admission of the appeal was not passed, on 25th April, 1996 while disposing of the Civil Application No. 4292 of 1995, this Court observed that the appeal was expedited. I find from the record that there was no application filed in the appeal from Order for interim relief and there is nothing on record to show that after the Revision Application was allowed to be converted into an appeal from order, any interim relief was granted by this Court.
(3.)The learned counsel for the appellant submitted that the appellant had engaged services of an advocate. The advocate did not inform the appellant the date of hearing. It appears that the advocate also did not appear when the appeal preferred by the appellant was kept for final hearing before the District Court. The learned counsel contended that at that time the appellant was 70 years old and was suffering from blood pressure and diabetes. The appeal was dismissed on 28th July, 1992 and the application under Order LXI Rule 19 of the said Code was filed on 18th September, 1992. The learned Counsel therefore submitted that the application made by the appellant ought to have been allowed and the appeal ought to have been restored. She submitted that merely because medical certificate was not produced, the application for restoration could not have been rejected by the learned Appellate Court.