Patna High Court
Brij Behari Sah and AnrversusSri Govind Sah and Ors
- Decided
- Disposal
- ALLOWED
- Bench
- KHATIM REZA
Holding
The court held that the notice was validly served, condoned the delay, and restored the appeal under Section 151 CPC.
Summary
The petitioners Brij Behari Sah and Bindeshwar Sah filed an interlocutory application seeking restoration of First Appeal No. 232 of 2004, which had been dismissed for default on 24 August 2017. The court first examined whether notice to Opposite Party No. 1 had been validly served and, based on an affidavit of joint residence, held the notice to be valid. The petitioners then invoked Section 5 of the Limitation Act to condone the delay in filing the restoration application, and the court allowed the condonation. Subsequently, under Section 151 of the Civil Procedure Code, the court considered whether the appeal could be restored to its original file and number. Finding the explanations satisfactory, the court ordered the appeal restored, subject to compliance with a prior order within two weeks.
Issues considered
- Whether notice to the opposite party was validly served
- Whether the delay in filing the restoration application can be condoned under Section 5 of the Limitation Act
- Whether the appeal dismissed for default can be restored under Section 151 of the CPC
Legislation cited
- Code of Civil Procedure, 1908 — s. 151
- Limitation Act — s. 5
Subjects
- restoration of appeal
- limitation
- service of notice
- default dismissal
- Section 5 Limitation Act
- Section 151 CPC
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Jurisdiction Case No.9 of 2018
In
FIRST APPEAL No.232 of 2004
======================================================
1. Brij Behari Sah
2. Bindeshwar Sah both sons of late Manjhi Sah resident of village Gangti, P.S.
Pupri, P.O. Gangti, District Sitamarhi.
... ... Petitioner/s
Versus
1. Sri Govind Sah son of Late Manjhi Sah
…. …...Plaintiff-- Respondent 1st party
2. Mostt. Sarita Devi @ Dipa Devi wife of Late Rameshwar Sah
3. Mohan Kumar
4. Amar Nath Kumar
5. Dhirendra Kumar @ Pappu all sons of late Rameshwar Sah
6. Nunu Kumar
7. Bhullu Kumar
8. Nitu Kumari Minor sons and daughter of Late Rameshwar Sah through
natural guardianship of Sarita Devi
9. Srimati Kiran Devi wife of Shushil Kumar
10. Srimati Chandni Devi wife of Swarath Prasad Sah
11. Srimati Punam Devi daughter of Late Rameshwar Sah, wife of Ranjit
Kumar. Respondent no. 3 to 11 are the sons and daughter of late
Rameshwar Sah .All the respondents are the residents of village Gangti, P.O.
Gangti, P.S. Pupri, District Sitamarhi, via Janakpur Road.
… ...Defendants- respondents 2nd set.
12. Anandi Devi wife of Late Manjhi Sah resident of Village and P.O. Gangti,
P.S. Pupri Via Janakpur Road, District Sitamarhi.
13. Gayatri Devi wife of Jagarnath Sah Tuffani resident of village Mane Chauk,
P.S. Runni Saidpur, P.O. Manuchauk, District Sitamarhi.
14. Geeta Devi wife of Rama Sah resident of village Laxmipur, P.S. Nanpur,
P.O. Bhadayan, District - Sitamarhi.
15. Sita Devi wife of Shiv Shankar Prasad resident of Village - Bhutahi, P.S. -
Sonbarsa, P.O. Bhutani, District - Sitamarhi.
16. Sunita Devi wife of Hari Kishore Choudhary resident of village Bishanpur,
P.S. Sonbarsa, P.O. Bhutahi, District Sitamarhi.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Smt. Anuradha Singh, Advocate
For the Opposite Party/s :
======================================================
Patna High Court MJC No.9 of 2018(6) dt.13-02-2026
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CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
ORAL ORDER
6 13-02-2026 In compliance of the order dated 19.01.2026 passed
by this Court an affidavit of jointness has been filed stating that
Opposite Party No. 1 resides with his son, namely Prabhakar
Kumar in a joint house and have no adverse interest against
each other. It is submitted that the notice issued to Opposite
Party No. 1 has been received by his son.
2. In view of the aforesaid facts, the service of notice
upon Opposite Party No. 1 is deemed to have been validly
served.
Re. I.A. No. 5835 of 2018
3. The present interlocutory application has been filed
under Section 5 of the Limitation Act for condoning the delay in
filing the restoration application in F.A. No. 232 of 2004.
4. Earlier, notices were issued to the opposite parties
which was validly served, but no counter affidavit has been
filed.
5. Having regard to the aforesaid facts and the
averments made in the application as well as the explanation
given in the interlocutory application, the same is allowed.
6. Delay in filing the restoration petition in F.A. No.
Patna High Court MJC No.9 of 2018(6) dt.13-02-2026
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232 of 2004 is allowed.
Re: MJC No. 09 of 2018
7. The present application under Section 151 of the
CPC has been filed for restoration of First Appeal No. 232 of
2004 which stood dismissed for default on 24.8.2017 by a Co-
ordinate Bench of this Court to its original file and number.
8. Having regard to the facts and circumstances of the
case and the averments made in the application as well as the
explanation given in the application, the same is allowed.
9. Accordingly, First Appeal No. 232 of 2004 is
restored to its original file and number, subject to the
compliance of the order dated 24.7.2017 within a period of two
weeks from today.
(Khatim Reza, J)
shyambihari/-
U
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