- (1.) In this appeal on 21.09.2012 and 05.11.2012 following orders were passed on the order sheet: "21.09.2012 In the earlier part of the day delay condonation application and the appeal were dismissed as infructuous with favourable findings in favour of the appellants, however while finalising the judgment it transpired that earlier appeal (First Appeal Defective No.1266 of 1993) was filed by some of the claimants in the same reference mentioning in the memorandum of appeal under note-2 that appellants No.1 & 2 had one fourth share, appellant No.3 had one fourth share and appellant No.4 had one fourth share and remaining one fourth share belonged to proforma respondents No.4 to 7, who are appellants in this appeal. It was further mentioned in the said memorandum of appeal that the appeal was being filed for three fourth share only of the appellants and court fees was calculated accordingly for three fourth share of the appellants No.1, 2, 3 and 4 only and further claimants No.1 to 4 (appellants in the present appeal) were impleaded as proforma respondents in the appeal against whom no relief was being sought.
(2.) In view of this, order passed in open court in the earlier part of the day is recalled. This course is open in view of Supreme Court authority Surendra Singh Vs. State of U.P., 1954 AIR(SC) 194 and a Division Bench authority of this Court reported in Sangam Lal Vs. R.C. and E.O., Allahabad and others, 1966 AIR(All) 221
(3.) List for further hearing on 03.10.2012 along with First Appeal Defective No.1266 of 1993, decided on 28.01.2011 through judgment and decree passed on Civil Misc. Application No.114669 of 2010 filed in the said appeal. 05.11.2012 In the appeal which was filed against the same award which is challenged through this appeal by the other co tenure holders/parties in reference before the Court below {First Appeal (Defective) no.1266 of 1993} an order was passed on 28.1.2011 by the Division Bench which is quoted below: "Heard Mr. D. V. Singh, learned Counsel appearing for the applicants/appellants and Mr. R.K. Mishra, learned Counsel appearing for the respondents. This application has been made for the purpose of recalling the order passed by the Division Bench on 20.03. 2003. All the appeals arising out of the same requisition and acquisition were heard by the Bench and the Bench has passed an affirmative order. The same has been challenged before the Supreme Court and the Supreme Court by its order dated 05.07.2010 dismissed the special leave petition. This matter, in which the application has been made, was also arising out of the same requisition and acquisition and pending as a bunch case before this Court. However, no order was passed in this application in view of the fact that the appeal was dismissed being barred by limitation and for not making the payment of court fees. Now, the deficient court fees has been paid and at this belated stage without any counter affidavit, we can not hold and say that the delay will not be condoned and the order which has been passed in other appeals could not be passed herein. Against this background, we allow the restoration/recall application by condoning the delay, however, without imposing any cost. As a consequential effect, the appeal is treated to be as on day's list and and is also allowed in the same terms and conditions as passed under the order dated 17.12.2009 in First appeal No. 399 of 2009 (Sahi Ram Vs. State of U.P. and others).";