IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1237 OF 2009 Maya Baban Harpale ..... ..... ...Petitioner V/s Dnyanaba Dagdu Harpale & Ors. ..... ..... .Respondents. Mr.P.J.Pawar, Adv. for the petitioner. Mr.P.B.Gujar, for the Respondent No.1 Mr.V.S.Parulekar, Adv. For respondent Nos.2, 3 & 5. CORAM: A.P.DESHPANDE, J. 3rd December, 2009. PC: Rule. Rule made returnable forthwith. By consent of both the parties taken up for final disposal. The present petitioner is original plaintiff who has instituted a suit for partition and separate possession against the defendants. Defendants are admittedly in possession of entire property. Suit of the plaintiff came to be dismissed. The petitioner had filed a suit to claim share of her deceased husband Baban. After passing of decree the petitioner filed regular appeal and as there was delay of about 15 days in filing of the appeal also filed an application for condonation of delay. The first appellate court allowed the application for condonation of delay subject to payment of costs of Rs.500/- to be paid by appellant/petitioner within a period of 10 days from the date of passing of the order. It appears that inadvertently the appellant did not deposit amount of costs for considerable period and thereafter moved an application seeking permission to deposit the costs. The trial court rejected the said application as consequence thereof conditional order 1 passed on the application of condonation of delay appeal stood dismissed. It is this order passed by first appellate court dated 26.9.08 which declined to permit the petitioner to deposit the costs awarded under order dated 28.4.04 which is challenged in the present petition. According to the learned counsel for the petitioner the suit is for partition filed by widow claiming share of her deceased husband. The property comprises of agricultural lands. The property is in possession of the respondent. Thus the submission is that the petitioner would be put to suffer irreparable loss and undue hardship in the event appeal is not restored by allowing the application moved by the petitioner seeking permission to deposit the costs. Per contra, learned counsel for the respondent submits that order passed by the first appellate court is discretionary order which does not suffer from any illegality and hence same ought not be interfered with in exercise of jurisdiction under article 227 of the Constitution of India. Having regard to the fact that valuable immovable property forms subject matter of partition suit and the plaintiff is widow claiming share of her deceased husband and she would suffer irreparable loss and hardship in the event if she is not permitted to deposit the costs awarded by first appellate court while condoning delay under conditional order. In the interest of justice the present petition deserves to be allowed however subject to payment of costs. In the result the impugned order dated 26.9.08 passed by the additional district Judge II, Pune is quashed and set aside. Petitioner’s application being civil misc. application No.943/07 at Ex.18 seeking permission to deposit costs is allowed. Petitioner shall pay sum of RS. 5000/- towards costs of this petition to respondent No.1 and shall also deposit costs of RS.500/- awarded by the additional district Judge, Pune while allowing the application for condonation of delay within a 2 period of two weeks from today in the first appellate court. On such deposit of costs being made appeal shall stand restored to file and first appellate court shall proceed to decide the same in accordance with law. Writ petition is allowed. 30.12.2009. 3