CM(M)/912/2015 of RAJESH KUMAR AGGARWAL Vs SUNIL & ORS

IN THE HIGH COURT OF DELHI AT NEW DELHICM(M) 912/2015 & C.Ms 21771/2015 & 27781/16

RAJESH KUMAR AGGARWAL

Appellant

Through: Mr. Mitthan Lai, Advocate

versus

SUNIL &

ORS.

Through: Mr. S.K.Mishra, Advocate withrespondent No.3-in-person

CORAM:HON'BLE MR. JUSTICE SUNIL GAUR

ORDER0/^ 13.02.2017

One of the orders impugned in this petition is of 2U' May, 2014vide which petitioner's application under Order 9 Rule 13 CPC has beendismissed being bereft of merits and with cost of ^1,000/-.

During the pendency of this petition, petitioner was directed tothe awarded amount stand taken him was that he wasdeposit although by not the registered owner of the vehicle in question and is not liable tosatisfy the Award, which has been passed jointly and severely againstdriver-owner as well as herein. interim orders werepetitioner Although in this but were not continued and as ownpassed petition, per petitioner's showing, out of the awarded amount deposited by appellant, sum ofRs.3,03,250/- has been already released to respondents-claimants.

Vide last order, execution file was summoned and its perusalreveals that execution stands satisfied. The relief sought in this petition is

for stay of the orders passed in the execution proceedings. Thus, it

Signature Not Verified

becomes evident that this petition has become infructuous. However,petitioner cannot be left without remedy, as he was ex parte before thelearned Tribunal and his application seeking setting aside of ex parteproceedings has been dismissed vide impugned order of 2H' May, 2014.As per Order 43 Rule 1 CPC, order dismissing application under Order 9Rule 13 CPC, is appealable.

Learned counsel for petitioner submits that due to inadvertence, anappeal was not filed against order or 2L' May, 2014 and petitioner benow permitted to appeal against it while waiving the objection oflimitation.

Upon hearing and in the peculiar facts and circumstances of thiscase, this petition and the application are disposed of as infructuous withliberty to petitioner to file an appeal against order of 21" May, 2014 alongwith application for condonation of delay within four weeks. Needless tosay, if it is not so done, then an application for condonation of delaywould be considered while taking into consideration the period spent inpursuing the remedy before wrong forum. In the event of petitionersucceeding in the appeal against order of 21" May, 2014, it would beopen to petitioner to seek the recovery of the amount deposited by him inpursuance to the orders passed in this petition.

With aforesaid directions, this petition and the application aredisposed of while not commenting upon merits, lest it may prejudiceeither side in appeal proposed to be filed.

(S^fLGAURTJUDGE

FEBRUARY 13, 2017

CMCM) No.912/2015

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