No. 1/01.03.2010.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Heard Mr. A. K. Bandyopadhyay, the Ld. Advocate for the Appellant in support of the application for condonation of delay.  It appears from the application itself that the present Appellant challenged order impugned in the present appeal in a revisional application which was dismissed as withdrawn by order dated 10.09.2009 of this Commission.  Copy of the said order (Annexure B) has been enclosed to the present application.  In the sub-paragraph of paragraph 3 wherein relevant facts have been stated by the Appellant praying for condonation of delay, the Appellant has admitted that the aforesaid order dismissing the revision petition the present Appellant as JDR raised jurisdictional issue before the Executing Forum.  Mr. Bandyopadhyay relies on order dated 01.02.2010 passed by the Executing Forum for the purpose of contention that the present appeal has been filed in view of the observation made by the Executing Forum in the aforesaid order. 

We have considered the materials on records.  It appears that this Commission by order dated 10.09.2009 only recorded that the revisionist did not want to proceed with the revision and so having instruction to withdraw the revision.  Accordingly the prayer was allowed and the revision petition was dismissed as withdrawn.  At that stage the present Appellant was within its rights to challenge the same order before the appellate forum.  admittedly the said course was not adopted and admittedly the present Appellant approached the Executing Forum raising the jurisdictional issue.  Only when on the jurisdictional issue the Appellant failed before the Forum on a clear finding that Executing Court having no power to recall its order and refused execution unless the decree/order has been set aside by a superior court or is recalled by the Court which has passed it.  In the circumstances we are of the opinion that present appeal challenging the original order dated 28.05.2009 cannot be challenged in the appeal without explaining the conduct of the Appellant in which such long delay has occurred in the meantime.  We are of the opinion that after approaching the State Commission challenging the said final order in a revision petition and thereafter withdrawing the same, when the Appellant had approached the Executing Forum on jurisdictional issue, we are to accept they have given up their rights to challenge the final order.  In the circumstances the explanation for delay of such long period in the above facts, is not found acceptable.  Mr. Bandyopadhyay, the Ld. Advocate in support of his contention relied on the judgements in the case of United India Insurance Co. Ltd. – vs. – Rajendra Singh and others reported in AIR 2000 S.C. 1165, S. P. Chengalvaraya Naidu – vs. – Jagannath reported in AIR 1994 SC 853 and Ram Chandra Singh – vs. – Savitri Devi & Ors. reported in (2003) 8 SCC 319.  In view of facts as discussed hereinabove the law decided in the said three cases are not applicable in this case and, therefore, in our opinion the said judgements do not support in respect of the present consideration as regards condonation of delay.  The application is dismissed.  Accordingly the appeal also stands dismissed.