- (1.) THIS is an application under Order IX, Rule, 9 C.P.C. read with Order XLI Rule 19 C.P.C. filed by the appel­lants against an order dated 30-7-92 passed by a Division Bench consisting of two Hon'ble Judges, including one of us (Justice G.S.N. Tripathi), whereby the appeal was dismissed as being insufficiently stamped. The aforesaid First Appeal was directed against the judgment and order dated 14-3-91 passed by Sri Oudho Singh, the then Xth Addl. District Judge, Allahabad in Land Ac­quisition Reference No. 124 of 1988, whereby the learned Xth Addl. District Judge gave an award evaluation the dis­puted land @ 150 per square meter. He also awarded interest @ Rs. 12% from the date of taking possession (25-10-86). Other in­terests were allowed under the provisions of Land Acquisition Act. This appeal was filed on 18-9-91. The Stamp Reporter reported on 19-9-91 that a Court-fee of Rs. 7,21,207 was due on the memo of the appeal. Other technical defects were as follows: (a) Second Judge's copy is wanting (b) Parties are not properly described. But these objections are not res Integra in the present application before us. The only relevancy is that the deficient Court-fee as reported, was not paid at all till 30-7-92, practically 10 months after the defect was pointed out by the Stamp Reporter. The appeal was filed after paying the only Court fee of Rs. 10/-. Basically this is the order dated 30-7-92, which is sought to be set aside by way of this application. The application for setting aside the aforesaid ex-parte order dated 30-7-92 was moved for the first time on 2-9-96 along with an application and affidavit for condoning the delay.
(2.) THE appeal had been filed by Sri Jitendra Nath Sharma, Advocate, Counsel for the appellants. His Vakalatnama is on the record of the said appeal. It is further alleged that inadvertently the clerk of Sri U.N. Sharma, Advocate could not note the date of 30-7-92. Therefore, he could not inform the counsel with the said state of affairs. Therefore, the appeal was dismissed for want of Court-fee despite humble re­quest by Sri J.N. Sharma, another Counsel of the panel of the Allahabad Development Authority (hereinafter referred to as A.D.A.). Meanwhile an application for dis­missal of the First Appeal was also moved by Sri U.N. Sharma on behalf of the appellant. But this Court did not accept that conten­tion of Sri Sharma and passed the following order on 30-7-92: "List has been revised. None is present for the appellant. Sri D.P. Singh appeared on behalf of the respondents. There is no 'Vakalatnama of Sri J.N. Sharma on behalf of the appellant, hence petitioner has no right to move this application for dismissal of the First Appeal as withdrawn. Ap­plication is rejected. On 18-9- 91, the appeal was filed with deficiency in Court-fee of Rs. 7,21,207. This deficiency has not been made so far. Appeal is rejected for want of sufficient Court fee." It was further urged that due to the said mistake on the part of the clerk of Sri U.N. Sharma, Advocate, the order of this Court dated 30-7-92 escaped notice of the appellant for a long time, as the file of the case in the office of the appellant, was misplaced and Sri U.N. Sharma had resigned. It was further alleged that this mistake was recently noticed in the third week of August, 1996 in the office of the appellant and accordingly the application for setting aside the order dated 30-7-92 was moved on 2-9-96. Thus there was sufficient justification for moving the application with so much delay. The appellant also wants to make good the deficiency, amounting to Rs. 7,21,207.
(3.) IT is also pertinent to note that an application for execution of the order of the Xth Addl. District Judge was filed in the Civil Court and the decretal amount was sought to be recovered from the property of the State Government as well as the appel­lant. An order to that effect was passed on 12-12-95 and then the slumber of the appel­lants ended. An affidavit to that effect has been filed by Sri S.P. Singh, Law Officer of the appellant A.D. A. and a prayer was made that recovery proceedings may be stayed pending before the Xth Addl. District Judge.;