1. This is an application for review of an order dated 28th November, 2002 passed by a Division Bench of this Court in F.A. No. 91 of 1995 thereby allowing the appeal.
2. In this application for review, it is alleged that no notice of the appeal was ever issued from the office of this Court, nor did the applicant appear by filing any vokalatnama in the said appeal and as such, the applicant has been prejudicially affected by the ex parte order passed against the applicant.
3. This application for review was filed along with an application for condonation of delay on the self-same plea.
4. While allowing such application for condonation of delay, another Division Bench of this Court by order dated 31st August, 2005 specifically recorded that there was mistake on the part of the Court in not issuing notice of appeal upon the present applicant and as such, on that ground alone, the said Division Bench condoned the delay of 622 days in preferring the application for review.
5. As indicated in the said order, initially the respondent No. 2 entered appearance by lodging a caveat and at the time of disposal of the application for stay, the Division Bench on 7th February, 1995 dispensed with the service of notice on the said respondent No. 2.
6. It is, therefore, apparent that no notice was ever issued upon the respondent No. 1 by this Court and at the same time, no lawyer appeared in the appeal on behalf of the respondent No. 1 by filing any vokalatnama.
7. The said Division Bench further pointed out that in the judgment sought to be reviewed, at inner page 10, it was recorded as follows :
On behalf of M/s. India Explosive Ltd. and the State Bank of India, it was contended that the company would have no hesitation in paying the amount under the fixed deposit receipt and the term deposit to the person/persons entitled to receive the money in accordance with law.
8. The Division Bench further pointed out that from the very first page of the judgment where the names of the Advocates were appearing, there was no indication that anybody appeared on behalf of the present applicant and at the same time, no vokalatnama on behalf of the respondent was also available on record.
9. Mr. Mukherjee, learned Advocate appearing on behalf of the appellant/ opposite party fairly conceded before us that his client had never taken any step to effect service upon the applicant.
10. We, therefore, find that there was a definite mistake on the part of the Court in not issuing any notice of appeal upon the present applicant and as such, the disposal of the appeal without giving any opportunity of hearing to this applicant cannot be supported.
11. On the above ground alone, we propose to recall the order dated 28th November, 2002 passed by a Division Bench in F.A. No. 91 of 1995.
12. We, therefore, recall the said order dated 28th November, 2002 passed by the Division Bench in F.A. No. 91 of 1995. The learned Advocate for the appellant is directed to take steps for service of notice of appeal upon the respondent No. 2 of the appeal. Such step be taken within a week from today.
13. Since Mr. Roy Chowdhury, learned Advocate, has already entered appearance on behalf of the State Bank of India, there is no necessity of fresh service upon the State Bank of India. Mr. Roy Chowdhury is directed to file fresh vokalatnama in the appeal within a week from today. Since the appellant engaged a different lawyer in the application for review, Mr. Mukherjee is directed to file fresh vokalatnama through his junior in the appeal for the purpose of representing the appellant. Such vokalatnama be also filed within a week from today.
14. Let the affidavit-in-opposition filed in Court today be kept with the records.
15. Parties are at liberty to mention for early hearing of the appeal after service of notice upon the parties.
16. This is an application under Section 5 of the Limitation Act for condonation of 622 days delay in preferring an application for review against the judgment and decree passed by a Division Bench of this Court.
17. Initially we are not satisfied with the explanation given in the application for condonation of delay, as a result, we directed the applicant/ petitioner to file supplementary affidavit for explaining the inaction on the part of the applicant.
18. Accordingly, supplementary affidavit has been given and in such supplementary affidavit it has been disclosed that no notice of appeal was served upon the present applicant and, at the same time, no vokalatnama was also filed on behalf of the applicant in the appeal.
19. The aforesaid application is opposed by the appellant/opposite party No. 1 by filing affidavit-in-opposition contending that at the time of hearing of the appeal, some learned Advocate appeared on behalf of the bank and such fact is recorded in the order disposing of the appeal.
20. After going through the entire order-sheet of the appeal, we find that the appellant did not take any step for service of notice of appeal either upon respondent No. 1, the present applicant, or the respondent No. 2, but a learned Advocate lodged caveat on behalf of respondent No. 2 and, as such, when an application for stay in connection with the appeal came up for hearing before a Division Bench on 7th February, 1995, the Division Bench specifically recorded an order of dispensing with service of notice on respondent No. 2. Therefore, it is apparent that no notice was ever issued upon respondent No. 1 by this Court and, at the same time, no learned Advocate appeared in the appeal on behalf of the respondent No. 1 by filing any vokalatnama.
21. It is true that in the judgment sought to be reviewed at inner page 10, it is recorded that on behalf of M/s. India Explosive Ltd. and State Bank of India, it was contended that the company could have no hesitation in paying the amount under the fixed deposit receipt and the term deposit to the persons entitled to receive money in accordance with law. But at the first page of the judgment where the names of the learned Advocate are appearing, there is no indication that anybody appeared on behalf of the present applicant.
22. We thus find that there was mistake On the part of this Court in not issuing any notice of appeal upon the present applicant, as a result, the applicant was not aware of the pendency of the appeal and that is the cause of delay in filing the application for review.
23. We, thus, condone the delay in preferring this application for review, as, in our opinion, there was mistake on the part of the Court in hearing out the appeal without issuing any notice upon the present applicant.
24. The application for condonation of delay under Section 5 of the Limitation Act being C.A.N. No. 3220 of 2005 is disposed of accordingly.
25. Let the application for review being R.V.W. No. 3180 of 2004 be listed in the cause list after fortnight.