1 CGHC010158452024 2026:CGHC:34541 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 54 of 2024 Smt. Kusum Mishra W/o Arun Mishra, Aged About 40 Years R/o Near Mission Chowk Ambikapur, Tehsil Ambikapur, District Surguja (C.G.) ----(Plaintiff) ... Appellant versus 1 - Manoj Kumar, R/o Near Tiwari Building Kedarpur, Nagar Ambikapur District Surguja (C.G.) 2 - Forest Officer Surguja, Pratappur Road Ambikapur, District Surguja (C.G.) 3 - SBI Branch Manager, State Bank Of India Main Branch Ambikapur, District Surguja (C.G.) 4 - Public In General ... Respondents/Defendants For Appellant : Mr. Anurag Singh, Advocate For Respondent No.1 : None present For Respondent No.2/State : Mr. Mayoor Khandelwal, Panel Lawyer For Respondent No.3 : Mr. Swapnil Thawaney, Advocate on behalf of Mr. PR Patankar, Advocate (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Order on Board 06.08.2026 1. This miscellaneous appeal under Order XLIII Rule 1(t) of the Code of Civil Procedure, 1908 (for short ‘the CPC’) has been preferred by the appellant challenging the Order dated 07.02.2024 passed by District Judge, Ambikapur Distt. Surguja in Miscellaneous Civil Suit No.78/2022, whereby the application filed by the appellant under Order XLI Rule 19 CPC, has been rejected. BINI PRADEEP Digitally signed by BINI PRADEEP Date: 2026.08.10 15:56:03 +0530 2 2. Facts of the case, in nutshell, are that the appellant had filed application under Section 372 of the Indian Succession Act, before First Civil Judge Class-1, Ambikapur, Surguja, which was registered as Succession Case No.07/2019. After hearing both the parties, the said application was dismissed vide Order dated 28.02.2020 (Annexure-A/5) by the trial Court. Aggrieved thereby, the appellant preferred an appeal being Civil Appeal No.11/2020, before the District Judge, Surguja, Ambikapur. However, the appeal was dismissed as not pressed vide order dated 07.05.2022, on the statement made by the counsel appearing on behalf of the appellant. Thereafter, on 19.07.2022, the appellant filed an application (Annexure-A/8) under Order XLI Rule 19 CPC, seeking restoration of the appeal, along with an application under Section 5 of the Limitation Act for condonation of delay in filing the restoration application. The learned District Judge, by the impugned order dated 07.02.2024, dismissed the restoration application holding that since the appeal had been dismissed as not pressed, the same could not be restored under Order XLI Rule 19 CPC. Being aggrieved by the said order, the present appeal has been preferred. 3. Learned counsel for the appellant submits that the learned District Judge has dismissed the application filed by the appellant under Order XLI Rule 19 CPC only on the ground that since the appeal had been dismissed as not pressed, and therefore, it cannot be restored under the aforesaid provision. He further submits that the then counsel for the appellant, without obtaining the permission/consent of the appellant, made a statement that the appeal was not pressed, whereas the appellant was intended to prosecute the appeal and obtain a decision on merit as she was claiming the monetary benefits of late Kanti Bai, who had adopted her. But on account of 3 unauthorized statement made by her counsel, the appeal was dismissed vide order dated 07.5.2022. 3.1 Learned counsel further submits that the appellant has intended to have her appeal adjudicated on merits. Merely because the restoration application (Annexure A/8) was filed quoting wrong provision of law, the same ought not to have been rejected on that technical ground alone. The substance and intention of the application clearly disclose that the appellant sought restoration of the appeal for adjudication on merits. Therefore, the learned District Judge ought to have allowed the application invoking the discretionary power vested under Section 151 of the CPC. It is further contended that the learned District Judge has neither considered nor adjudicated the application filed under Section 5 of the Limitation Act seeking condonation of delay. Hence, it is prayed that the impugned order be set aside and the matter be remanded back to the learned District Judge with a direction to reconsider and decide the appellant's restoration application afresh, treating it as an application under Section 151 CPC, along with the application under Section 5 of the Limitation Act, in accordance with law. 4. Learned counsel for respondent No.3 submits that since the appeal filed by the appellant had been dismissed as not pressed, the appropriate remedy available to the appellant was to invoke the inherent jurisdiction of the Court under Section 151 of the CPC and not under Order XLI Rule 19 CPC, as the appeal had not been dismissed for want of prosecution. Hence, he prays that an appropriate order be passed. 5. Learned counsel for the State would submits that the State is a formal party in this case. 6. Heard learned counsel for the parties and perused the material available on record. 4 7. Admittedly, Misc. Civil Appeal No.11/2020 (Smt. Kusum Mishra vs. Manoj Kumar & Ors.) preferred against order dated 28.02.2020, passed by First Civil Judge Class-I, Ambikapur in Succession Case No.7/2019, was dismissed on 07.05.2022, as not pressed on the statement made by counsel for the appellant. The counsel had also put note in this regard on the margin of the order sheet dated 07.5.2022, which is evident from the copy of the order sheet filed by the appellant/applicant. Thus, it is undisputed that the appeal was dismissed as not pressed. 8. It is also not in dispute that the application filed by the appellant/ applicant under Order XLI Rule 19 CPC was not maintainable in law as the said provision applies only where an appeal has been dismissed for want of prosecution. Since the appeal in the present case had been dismissed as not pressed, the proper course available to the appellant was to seek restoration by invoking the inherent powers of the Court under Section 151 CPC. Merely because the restoration application was filed under an incorrect provision of law, the same ought not to have been rejected on that technical ground alone. It is further evident from the record that, as the restoration application had not been filed within the prescribed period of limitation, the appellant had filed an application under Section 5 of the Limitation Act seeking condonation of delay. However, the learned District Judge, while rejecting the restoration application, did not consider or decide the application for condonation of delay. 9. In the case of Mysore Urban Development Authority vs. K.M. Chikkathayamma and Others, (2018) 17 SCC 508, the Hon’ble Supreme Court has held that “ a right of appeal is a valuable right of a litigant. He is entitled to prosecute this right as it enable him to seek adjudication of the issues on merits, which are subject-matter of the appeal before the appellate 5 court. He can, however, forgo such right but it has to be done with express authority and free will. The respondents, however, cannot compel the appellant to give up the right of prosecuting the appeal unless the respondents are able to show any express provisions in law in that behalf or valid reasons acceptable in law which deprive the appellant from prosecuting his grievance in appeal.” 10. In the instant case, the appellant has specifically pleaded in her restoration application that the then counsel without obtaining her permission/consent, made a statement that the appeal was not pressed, whereas she had intended to prosecute the appeal and obtain a decision on merits. However, she has been deprived of her right of appeal on account of wrong act committed by her the then counsel. 11. The Hon’ble Supreme Court in the case of G. Christhudas v. Anbiah (Dead) (AIR 2003 Supreme Court 1590), has observed as under:- "4. We may notice that appellant No. 4 died on 25-10- 1970, appellant No. 3 died on 1 -12-1971 and appellant No. 1 died on 7-10-1973. The appeal was ordered to be dismissed on the ground that the persons interested to prosecute the appeal had not moved within time. The dismissal for non-prosecution of the appeal by persons interested in the matter could only be under S.151 C.P.C and not under any other provision of O. XLI of C.P.C. If an appeal is dismissed under S.151 C.P.C., Art. 122 of the Limitation Act would have no application because when a Court makes an order under S.151 C.P.C it is implicit that such a Court has the power to entertain an application to set aside its order made under S.151 C.P.C. The power exercised under S.151 C.P.C is ex debito justitiae. An application invoking the inherent power of the Court under S.151 C.P.C is not one which a party is required to make under any provisions of the C.P.C for setting in motion the 6 machinery of the Court. Thus, Art. 122 of the Limitation Act has no application to such an application". 12. In the matter of Kanchanamala Anjana vs. Janaki Chandramathi Manimandiram, 2014 SCC OnLine Ker 25970, relying the aforesaid judgment has observed in para 10 as under :- “10. In the above case an identical situation was considered and there is no reason as to why the principles in that case cannot be applied to the present case. True, legal heirs of late Gopalakrishnan were not parties to the compromise. But the circumstances under which the petitioner happened to represent that A.S. No. 29/2000 was not pressed have already been mentioned. Further quoting a wrong provision cannot be treated as fatal when adherence to technicalities results in injustice.” 13. In the present case also, the appeal came to be dismissed as not pressed on the basis of the statement made by the then counsel for the appellant, whereas the appellant has categorically mentioned that such statement had been made without her knowledge or consent. In these circumstances, the learned District Judge ought to have treated the restoration application (Annexure-A/8), though filed under Order XLI Rule 19 CPC, as one under Section 151 CPC and proceeded to consider the application under Section 5 of the Limitation Act for condonation of delay. A liberal view ought to have been taken so as to afford the appellant an opportunity to have her appeal decided on merits. Instead, the restoration application has been rejected on technical ground, that too without considering the application under Section 5 of the Limitation Act. Hence, the impugned order, is not sustainable in law and deserve to be set aside. 14. Consequently, this appeal is allowed and the impugned order dated 07.02.2024 passed by District Judge, Surguja, Ambikapur in Miscellaneous 7 Civil Suit No.78/2022 is set aside/quashed. The matter is remitted to the Court of District Judge, Surguja, Ambikapur with a direction to restore Misc. Civil Suit No.78/2022 (Smt. Kusum Mishra vs. Manoj Kumar & Ors.) and consider the appellant's restoration application (Annexure-A/8), though filed under Order XLI Rule 19 CPC, but treating it to be an application under Section 151 CPC and to consider and decide the same afresh, along with the application under Section 5 of the Limitation Act, in accordance with law. 15. This appeal is allowed to the extent indicated hereinabove. 16. The Record of the Court below, along with a copy of this order, be returned to the concerned court below forthwith for compliance. 17. Pending interlocutory application(s), if any, stands disposed of. Sd/- (Naresh Kumar Chandravanshi) Judge Bini