JUDGMENT 1. - S.B. Civil Second Appeal No. 215/1980 was filed by defendant No 5 in Civil Suit No. 14/1971 of the trial Court. Defendant No. 5 had also impleaded in the array of appellants the firm M/s. Sarvan Kumar Rajendra Kumar through himself. The second appeal was admitted on 5th December, 1980. It appears from the proceedings of the Registry that by 8th April, 1981, respondents No. 1 to 3 in the appeal were duly served. Ramji Das and Prabhati Lal (who were defendants No. 2 and 4 in the suit and respondents No. 4 and 5 in the second appeal) were not served and, therefore, the Registry ordered for issue of fresh notice for these respondents. Process fee and notices were not filed by 23rd April, 1981 and hence the same were not issued. On 11th May, 1981, the counsel for the appellant sought time for the purpose. Thereafter also some more dates were given for filing of notices and process fees. Ultimately, the second appeal was listed for orders before the Bench on 7th August, 1981. On that date, Justice G.M. Lodha (as he then was) passed the following order:- "Mr. Garg is granted one month's time to file notices and process fee, failing which the appeal would stand dismissed automatically." 2. Despite this order, process-fee and notices were not filed. It was on 15th September, 1981 that the appellant filed an application for condonation of delay in filing of process-fee. In that application, it was mentioned that the appellants counsel had given the money for the process-fee to his clerk Shri Ramesh who forgot to file the same by inadvertance. This application was disposed of by Justice G.M. Lodha on 22nd October, 1981. He was of the opinion that irrespective of the fact whether this Court after passing premptory order retains any jurisdiction to pass orders against the premptory orders by condoning delay or extending period, he was convinced that the explanation given for not filing notices and process-fee was very curious. He was not satisfied with the explanation and moreso when affidavit of the clerk concerned was not filed. He held that the period of one month which had been granted for filing notices and process-fee on 7th August, 1981 had expired on 7th September, 1981 and the appeal stood dismissed automatically, and, therefore, the application for restoration should not be accepted. He held that the period of one month which had been granted for filing notices and process-fee on 7th August, 1981 had expired on 7th September, 1981 and the appeal stood dismissed automatically, and, therefore, the application for restoration should not be accepted. The learned Judge also referred to the High Court Rules and held that process-fee and notices were filed on 15th September, 1981 after the appeal stood dismissed on 9th September, 1981 automatically and there was no sufficient cause for not filing process-fee and notice on various dates of hearing commencing from 3rd April 1981. The concluding portion of the order is-"The application for restoring the appeal now has got no force and is therefore, dismissed." 3. It may be mentioned here that as a matter of fact the appellant had filed an application for condonation of delay for filing of the process-fee and for restoration of the appeal. The application for condonation of delay lies under High Court Rules. In the earlier part of his order, the learned Judge himself referred that on 15th September, 1981, an application was moved for condonation of delay in filing process-fee and that application had come for consideration. Then, he proceeded on the presumption that an application for condonation may lie irrespective of the fact that there was a premtory order. Thereafter he proceeded further to examine the question of sufficient cause or good cause for not filing process fee and notices and disposed of the application as if it was an application for restoration of appeal. 4. Appellant No. 1 M/s. Sarwan Kumar Rajendra Kumar through Sarwan Kumar filed an application under Order 41 Rule 19 and Section 151, CPC for restoration of the appeal treating the aforesaid order dated 22nd October, 1981 as if it was an order of dismissal of appeal. In this restoration application, the same cause was shown that the aforesaid appellant had taken all the precautions to file process-fee and notices in time by giving the amount on 24th August, 1981 to the counsel and the counsel gave the amount to his clerk Shri Ramesh and that clerk Shri Ramesh forgot to file the process fee, despite receiving the amount. Affidavit of his counsel Shri K.N. Garg and that of Ramesh was also appended to the application. It may be stated that the restoration application itself was dismissed in default. Affidavit of his counsel Shri K.N. Garg and that of Ramesh was also appended to the application. It may be stated that the restoration application itself was dismissed in default. However, the same was subsequently restored. Now the restoration application has come up for disposal before me. If we go through the provisions of Order 4l of the Code of Civil Procedure, after the appeal is admitted, it would appear, that the appellate Court, after sending for the record, can dismiss the appeal without service of notice on the respondent or his pleader. If on the day fixed or any other day to which hearing may be adjourned, the appellant does not appear, the Court can order the appeal to be dismissed under Order 21 (sic 41) Rule 11(2), CPC. If the appeal is not dismissed under Rule 11 of Order 41, CPC, the appellate Court fixes up for hearing of the appeal having regard to the current business of the Court and the time necessary for the service of the notice of appeal so as to allow the respondent sufficient time to appear. Order 41 Rule 14, inter alia, provides that notice of the day fixed under Rule 12 shall be affixed in the Appellate Court-house and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice. Notice to be served is to be accompanied by a copy of memorandum of appeal. Thereafter there can be contingencies when the appeal could be dismissed without its decision on merits. The first contingency is provided in Order 41 Rule 11, CPC when the appellant does not appear when the appeal is called for hearing. This contingency did not arise in this case. Thereafter there can be contingencies when the appeal could be dismissed without its decision on merits. The first contingency is provided in Order 41 Rule 11, CPC when the appellant does not appear when the appeal is called for hearing. This contingency did not arise in this case. The second contingency is specified in Order 41 Rule 18, CPC which, inter alia, provides that where on the day fixed, or on any other day to which the hearing may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within the period fixed, the sum required to defray the cost of serving the notice or, if the notice is returned unserved, and it is found that the notice to the respondent has not been issued in consequence of the failure of the appellant to deposit, within any subsequent period fixed, the sum required to defray the cost of any further attempt to serve the notice, the Court may make an order that the appeal be dismissed. I am of the opinion that this order of dismissing the appeal can be passed on the day fixed for the hearing of the appeal or on the day to which the hearing may be adjourned and it can be passed when further time is granted to an appellant who had previously committed default in depositing the required cost. Premptory order of dismissal had been passed in the instant appeal by Justice G.M. Lodha on 7th August, 1981. It is not in dispute that the appellant had not filed process fee within a period of one month, which had been allowed on 7th August, 1981. The appeal, therefore, automatically stood dismissed under Order 41 Rule 18, CPC on the expiry of period of one month i.e. on 7th September, 1981. 5. It is not in dispute that the appellant had not filed process fee within a period of one month, which had been allowed on 7th August, 1981. The appeal, therefore, automatically stood dismissed under Order 41 Rule 18, CPC on the expiry of period of one month i.e. on 7th September, 1981. 5. There is a provision in Rule 166 of the Rules of High Court of Judicature for Rajasthan, 1952, which provides that if the requisite process fee or cost of issuing notice is not paid or the requisite notices are not supplied within the time prescribed in rule 165, the appeal, or application, as the case may be, shall be listed before the Court for dismissal and shall be dismissed unless on case being called, an application signed by the party or his advocate or brief holder together with the requisite process fee cost or notices, as the case may be, is presented to the Court for condonation of delay and the Court deems fit to grant it. Clearly, Rule 166 will only apply when on account of non-supply of notices within the time prescribed under Rule 165 is not paid or requisite notices are not supplied and the Registry lists the case before the Court for dismissal. It is only in such cases that the so-called application for condonation of delay lies and it is to accompany with the requisite court fee and cost of notices and with a prayer to condone the delay. If no such application is filed along with requisite process-fee and notices, the appeal has to be dismissed. Rule 166 is not attracted in the instant case because it was on 7th August, 1981 that the appeal had been lifted before the Court for dismissal and the Court was liberal enough to grant to appellant, even without an application for condonation of delay and without filing of requisite process-fee and notices one month's time to do so with a premptory order that on failure to file notices and process fee within one month, the appeal would stand dismissed automatically. That dismissal of appeal automatically is not under Rule 166, but is clearly under Order 41 Rule 18, CPC. 6. That dismissal of appeal automatically is not under Rule 166, but is clearly under Order 41 Rule 18, CPC. 6. If that occurs, the appellant can apply under Order 41 Rule 19 to the appellate court for re-admission of the appeal and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal. In the instant case, the second appeal stood dismissed under Order 41 Rule 18, CPC on 7th September, 1981. According to Article 122 of the Limitation Act, 1960, the period for submitting an application for restoring an appeal dismissed in default for want of prosecution or for failure to deposit cost of service of process is 30 days from the date of dismissal. In the present case, the appeal stood dismissed on 7th September, 1981. The present application for restoration under Order 41 Rule 19, CPC was filed on 2nd December 1981. It was clearly time barred. No application under Section 5 of the Limitation Act has been filed. 7. The application is dismissed as time-barred.Application Dismissed. *******