MAHENDRA DAYAL, J. - (1.) I have heard learned counsel for the parties and have gone through the record.
(2.) THE applicant through their counsel has moved C.M. Application No.1927 of 2006 for modification of the judgment and order dated 24.11.2003 whereby the second appeal was dismissed as not pressed.
(3.) LEARNED counsel for the applicant has submitted that during the pendency of the second appeal, the appellant no.1 Jhakri died in the month of June, 2003 leaving behind the applicant as his only son and legal heir. However no application for substitution to bring on record the legal heir of the deceased -appellant was moved before this Court. In the meantime, the appellant no.2 entered into compromise with the respondents without the knowledge of the applicant and got an application moved for dismissal of the second appeal by engaging another counsel and stating therein that the parties had entered into settlement outside the Court and as such the appeal be dismissed as not pressed. The submission on behalf of the applicant is that the applicant was not aware of all these developments and the appellant no.2 alone was not competent to withdraw or not press the second appeal fully knowing that the applicant, who is son of the deceased -appellant no.1 was also interested in the matter. It was in the month of August, 2006 that the applicant was asked by the respondents as to why he did not start some business out of the amount received by him. This came as a surprise to the applicant, who made inquiry and then only the fact of dismissal of the appeal came to his knowledge. He then immediately contacted his counsel, who advised him to move this application for modification/recall of the order dated 24.11.2003. The prayer has also been made for condonation of delay in moving the application for recall/modification of the order dated 24.11.2003. Another application for substitution/impleadment of the applicant along with an application for condonation of delay has also been moved.;