ash 1 67ao-471.03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO. 471 OF 2003 Shri Maruti Shivram Jangam & Anr. .. Appellants. Vs Shri Vishnu Shankar Jangam & Anr. .. Respondents ­­ Shri Uday Warunjikar for the Appellants. Shri Vivek Salunke i/by Shri P.B. Shah for Respondent Nos.1 and 2. ­­ CORAM ; A.S. OKA, J DATED : 30TH MARCH, 2011 P.C. . There is an order directing that this appeal shall be finally decided at the state of admission. The Appellants are original Plaintiffs. One Vishwanath was the Defendant. The suit filed by the Appellants ended with the consent decree dated 2nd September, 2002. The present Respondents preferred an appeal against the consent decree. 2. The Appellate Court framed two points for determination. The first point was of maintainability of the Appeal. It is on the ground that the Respondents were not parties to the suit in which the decree was passed. The second point was regarding validity of the compromise decree. ash 2 67ao-471.03 3. Learned counsel appearing for the Appellants submitted that the Appeal was not maintainable as the Respondents not being the parties to the suit could have preferred an appeal only after obtaining the leave of the Appellate Court. The second submission is that though admittedly there was a delay in preferring an appeal, delay was not condoned as there was no application for condonation of delay. He submitted that the appeal could not have been registered and heard finally. 4. Learned counsel appearing for the Respondents submitted that there is a finding recorded by the Appellate Court that the Respondents were entitled to maintain the appeal. He submitted that the delay was of few days and there was an explanation for delay in the Memorandum of Appeal itself. He pointed out that the Appellate Court has considered the explanation for delay. He submitted that no interference is called for. 5. I have considered the submissions. Perusal of Paragraph 11 of the impugned judgment of the Appellate Court shows that admittedly there was a delay in preferring an appeal. While deciding the appeal finally, the learned District Judge has purported to hold that there was a sufficient cause for condonation of delay. Unless there was an ash 3 67ao-471.03 application for condonation of delay filed under Section 5 of the Limitation Act, 1963 and the delay was condoned, the Appeal could not have been registered. The procedure followed by the learned District Judge is completely unknown to law. Learned Judge has purported to condone the delay in preferring an appeal while allowing the Appeal and passing the order of remand. Thus, the very registration of the Appeal is illegal and the impugned judgment and order will have to be set aside only on that ground. The issue of maintainability of the Appeal will have to be left open to be decided in the appeal provided the delay in preferring the Appeal is condoned. 6. Hence, I pass the following order. ORDER: (a) The impugned judgment and order dated 3rd May, 2003 is quashed and set aside and the Appeal preferred by the Respondents is restored. (b) It will be open for the Respondents to file an application for condonation of delay within a period of two weeks from the date on which writ of this order is received by the District Court. If such an application is made within the stipulated time, the Appellate ash 4 67ao-471.03 Court will decide the same in accordance with law. (c) If application for condonation of delay is not made within the stipulated time, the Appeal will stand dismissed for non­ prosecution without further reference to the Court. (d) If the Respondents apply for condonation of delay, at the time of hearing of the application for condonation of delay, it will be open for the Appellants to raise issue of maintainability of the Appeal at the instance of the Respondents who were not parties to the suit. (e) The Appeal is partly allowed on above terms with no orders as to costs. ( A.S. OKA, J )