Law: Civil Procedure Code (V of 1908)

Section: 151

  Civil Procedure Code (V of 1908)--- ----S.151 & O.XLI, R.19---Readmission of appeal dismissed for non-prosecution was ordered on payment of amount of one month'-s rent as cost to respondent-- Amount of cost was admittedly tendered by counsel for the appellant but counsel for respondent declined to accept same on friendly consideration thus he waived his right to receive the same voluntarily---Held, it was not open to the respondent to turn around and disown the act of her counsel so as to debar the appellant from conducting the appeal. A I R 1971 Assam 150 and A I R 1976 All. distinguished. Civil Procedure Code (V of 1908)--- ----S.151 & O.XLI, R.19---Readmission of appeal dismissed for default was ordered on payment of amount of one month's rent as cost to respondent-- Counsel of respondent, however, waived his right to receive the said amount of cost voluntarily---Leave to appeal to Supreme Court had already been granted against the judgment in said appeal---Held, Supreme Court being already seized of the matter and High Court having become functus officio application is liable to be dismissed it. Iqbal Haider for Appellant. Abdul Sattar Pingar for Respondent. Date of hearing: 11th March, 1990. ORDER The facts forming the background of this application made on behalf of the respondent under section 151, C.P.C read with Order 41, rule 19, C.P.C. are these:-- The appeal was dismissed for non-prosecution on 27th September, 1987. The appellant filed an application (CMA No.18.30 of 1987) for restoration of appeal. It was heard on 18th November 1987 when my learned brother Dr. Tanzil-ur-Rehman, J. passed an order on that day setting aside the order dated 27th September 1987, by consent of Mr. Liaquat Merchant, learned counsel for the respondent, on payment of Rs.1,750 being the amount of one month's rent as cost to respondent and fixed the appeal for regular hearing to 19-11-1987. On the said date viz. 19-11-1987 Mr. Iqbal Haider, Advocate appeared for the appellant and Mr. Liaquat Merchant Advocate for the respondent. Both the learned counsel for the parties by consent got the hearing adjourned to 23-11-1987. It was subsequently fixed on…