1988 PLP 1379 (MLD)

This is an application for restoration of an application under section 151, C.P.C. (C.M.A. No.920 of 1987) which was dismissed for non‑prosecution on 28‑9‑1987. It may be pertinent to state few facts in order to appreciate the reasons for tiling of C.M.A. No.1258 of 1987. The present appeal is directed against the Judgment and decree of a learned Single Judge for a sum of Rs.1,70,880 passed in Suit No.1078 of 1979 in respect of a fatal accident. The above appeal had come up for Katcha Peshi as far back as 5‑8‑1985 before a Division Bench of this Court when Mr. P.M. Amer, Learned counsel for the appellant was asked, whether the appellant was willing to deposit at least half of the decretal amount in Court. After that on 9‑9‑1985, a Division Bench of this Court ordered the appellant to furnish a bank guarantee of a sum of Rs.90,000 in place of decretal amount of Rs.1,70,

880. It seems that in spite of repeated opportunities given to the appellant, the appellant has not furnished the above bank guarantee. When the above matter had come up for further order on 16‑2‑1987 Mr. P.M.Amer; learned counsel for the appellant was declined by the Division Bench and it was ordered that the appeal should be consigned to the record and R & P of the suit be sent to the concerned Court. ' After the passing of the above order, the appellant filed C.M.A. No.920 of 1987 for recalling the above order dated 16‑2‑1987. The above application was dismissed for non‑prosecution on 28‑9‑1987, whereby the above C.MA. No.920 of 1987 was dismissed. The above C.M.A. No.920 of 1987 was restored by us on 4‑4‑1988. In support of the above application Mr. P.M. Amer, learned counsel for the appellant has vehemently urged that even the suit was time‑barred as the court fee was paid after about one year and nine months from the date of the filing of the suit and, therefore, it was a fit case in which the appeal should have been accepted. We have pointed out to the learned counsel for the appellant that as far back as 9‑9‑1985 a Division Bench had ordered that the appellant would furnish bank guarantee of Rs.90,000 against the decretal amount of Rs.1,70,880 and that in spite of several opportunities the appellant did not comply with the above order and, therefore, on 16‑2‑1987 another Division Bench passed the above order for consigning the appeal to the record which in fact amounts to dismissal of the above appeal for non‑prosecution. In our view, no exception can be taken to the above order as the III appellant was given ample opportunities to comply with the order dated 9‑9‑19851 W which he failed to comply with. We, therefore, dismiss the above application. M.Y.H./M‑473/K Petition dismissed.