JUDGMENT 1. - Heard learned counsels. 2. By this restoration application, the defendant appellant has prayed that his First Appeal No. 37/1997, Which was pending for hearing in due course and came up before the Court on 16.7.2010 for orders on an application filed by plaintiff respondents through Mr. S.Y. Sharma, Advocate, but the appeal itself was dismissed for default of appearance of appellant, may be restored to its original number and position. 3. Mr. Hemant Shrimali, appearing for the appellant defendant urged that while admitting the first appeal, ex-parte interim order was passed in favour of the appellant staying the execution of the decree under appeal on 24.2.1997, which order was modified on an application filed by the respondent plaintiff through Mr. B.N. Kalla, Advocate and after hearing both the parties, the coordinate Bench of this Court on 28.6.1999 modified the ex-parte stay order dated 24.2.1997 and directed the appellant-defendant to deposit Rs. 18,000/- before the learned trial Court within one month and further continue to deposit Rs. 3600/- yearly as mesne profits before the learned trial Court. It was also directed that if the appellant failed to comply with any of the conditions enumerated in the said order, the plaintiff respondents shall be at liberty to execute the decree under appeal and the ad interim order dated 24.2.1997 shall be deemed to be vacated. The amount so deposited by the appellant was specifically directed to remain deposited with the learned trial Court and it would be refundable to the successful party in the first appeal. 4. Thereafter on 28.5.2003, another application for early hearing was filed by the respondents through Mr. B.N. Kalla, Advocate which also came to be rejected by this Court by a detailed order dated 28.5.2003. The appeal was, thus lying pending for hearing in due course. On 13.5.2010, an application under Section 151 Civil Procedure Code appears to have been filed by the respondent plaintiffs through a new counsel Mr. S.P. Sharma, Advocate, which was dealt with by the office and was placed for order before the Court on 9.7.2010 and 16.7.2010 and when no body appeared on behalf for the appellant on 16.7.2010, the appeal itself came to be dismissed in default of appearance. Hence, present restoration application was filed. 5. Mr. S.P. Sharma, Advocate, which was dealt with by the office and was placed for order before the Court on 9.7.2010 and 16.7.2010 and when no body appeared on behalf for the appellant on 16.7.2010, the appeal itself came to be dismissed in default of appearance. Hence, present restoration application was filed. 5. Mr. Hemant Shrimali appearing for the appellant urged that when the matter was only listed for orders on the said application, the appeal Itself could not have been dismissed in default of appearance, which too was for bona de reasons and at best appropriate orders could be passed on such application. He also submitted that there was no justification for filing such application at all since ad interim ex parte stay order dated 24.2.1997 was already modified after hearing both the parties on 28.6.1999 and it was clearly directed that the amount deposited by the appellant defendant shall remain deposited with the learned trial Court and it would be refundable to the successful party in the first appeal. Therefore, there was no justification for the plaintiff respondent to file such application seeking disbursement of the money so deposited by the appellant defendant through a different counsel. 6. On the other hand Mr. S.P. Sharma, Advocate who had filed detailed reply on behalf of the respondents vehemently opposed the said restoration application and also stated that he had pointed out to the Court on 16.7.2010 also, when no one had appeared on behalf of the appellant that matter was listed on the application filed by him but the Court was pleased to dismiss the appeal itself for default of appearance. 7. Having heard the learned counsels, this Court finds that sufficient and reasonable ground has been made out for restoration of the first appeal itself to its original number and position. it appears from the submissions made in the said restoration application that the defendant-appellant also had taken back the brief from Mr. Hemant Shrimali, Advocate at one point of time and had engaged another advocate Mr. Kanhaiya Lal Khatri, who, however, did file any Vakalatnama' as stated in para No. 4 of the restoration application. However after dismissal of the appeal when the respondent plaintiff wanted to sell the suit property in question, the defendant appellant enquired about the starts of the case and then came to know about the dismissal of the appeal in default of appearance. However after dismissal of the appeal when the respondent plaintiff wanted to sell the suit property in question, the defendant appellant enquired about the starts of the case and then came to know about the dismissal of the appeal in default of appearance. The endorsement on the application I.A. No. 7002/2010 dated 13.5.2010 filed by Mr. S.P. Sharma shows that the copy of the same not even supplied to opposite counsel nor to the appellant defendant and the note signed by advocate S.P. Sharma on the said application reads as under: "Counsel name stated and appeared on Internet for appellant refused to take copy, by saying that he has no instructions in this case. Sd/- (S.P. Sharma) 13.5.2010" 8. When the application itself on which matter was placed before the Court on 9.7.2010 and again on 16.7.2010 was not supplied to other side neither the counsel nor to party himself, which was necessary to put the other side to notice of such application, this fact ought to have been brought to the notice of the Court by the counsel appearing for the applicant-respondents No. 1 to 3, Mr. S.P. Sharma that copy has not been supplied so far for such reason and the matter is only listed before the Court for order on application but nothing of this sort appears to have been brought to the notice of the Court on 16.7.2010, Otherwise there was no justifiable reason for the Coordinate Bench of this Court to have dismissed the appeal itself when the matter was listed only for passing orders on the application filed at the point of time when the appeal itself was pending for hearing in due course and early hearing application filed on behalf of the respondent plaintiff had already been rejected by this Court on 28.5.2003. 9. The tenor of the said application also shows that it is filed contrary to the specific directions of this Court in the order dated 28.6.1999 passed after hearing both sides, therefore, I.A. No. 7002/2010 filed on 13.5.2010 by the respondent plaintiff through Mr. S.P. Sharma, Advocate was, prima facie misconceived and was filed with a view to seek disbursement of the amount deposited by the appellant defendant, which had already been negatived in the order dated 28.6.1999 passed after hearing both the parties. 10. The demeanour with which the learned counsel for the applicant respondent, Mr. S.P. Sharma, Advocate was, prima facie misconceived and was filed with a view to seek disbursement of the amount deposited by the appellant defendant, which had already been negatived in the order dated 28.6.1999 passed after hearing both the parties. 10. The demeanour with which the learned counsel for the applicant respondent, Mr. S.P. Sharma also made the argument around and disrespectful for the Court against the restoration application and I.A. No. 7002/2010, also put him in a poor shade. His statement before the Court that the he pointed out before this Court on 16.7.2010 that the matter was listed before the Court only on his application in the background of such application but still the Court was pleased to dismiss the appeal for default of appearance is not reliable. When the appeal was listed for hearing in due course and the matter was listed on 16.7.2010 only for orders on application, had all relevant facts of the said application been brought to the notice of the Court, there was no reason to dismiss the appeal itself for default of appearance and at best appropriate orders could have been passed by the Court on the said application, I.A. No. 7002/20 10 dated 13.5.20 10. 11. Consequently, this Court is of the opinion that the appellant defendant has made out sufficient ground for restoration of the appeal, which was dismissed in default of appearance on 16.7.2010. The delay in filing such restoration application is also for bona fide reason and the same is condoned. Therefore, restoration application is allowed and main appeal itself is restored to its original number and position and it existed prior to 16.7.2010. 12. So far as application I.A. No. 7002/2010 filed by the respondent plaintiffs seeking disbursement of the amount already deposited by the appellant defendant is concerned, as already discussed above, same is absolutely misconceived and has no merit since ex-parse stay order was already modified after hearing both the parties on 28.6.1999 and it was specifically directed in the said order that amount so deposited shall remain deposited with the learned trial Court and it would be refundable to successful party in the first appeal. There is no question of disbursement of said amount to the plaintiff respondents. There is no question of disbursement of said amount to the plaintiff respondents. If the first appeal of the appellant defendant is allowed, the money would obviously go back to the appellant defendant and question of disbursement of money to the plaintiff respondents does not arise. Such an application having no merit is also liable to be dismissed and same is accordingly dismissed with costs of Rs. 1000/- to be paid to the appellant defendant. 13. List the main first appeal, namely S.B. Civil First Appeal No. 37/1997 for hearing in due course, as per its turn.Application allowed. *******