KBP 3292-06.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3292 OF 2006 Sau.Ratanbai Vishvanath Paprikar (deceased) by her heir Shri Vishvanath Kashinath Paprikar ..Petitioners Vs. Smt.Indubai w/o.Kashinath Paprikar (deceased) by her legal heirs. ..Respondents ......... Mr.Prashant More h/f.Mr.K.K.Waghmare, for petitioners. Mr.Girish Paryani, for respondent Nos.2 and 3. ......... CORAM : A.S.OKA, J.. DATE : 27 th August, 2009. P.C. : 1] Heard the learned counsel appearing on behalf of petitioners and learned counsel appearing for second and third respondents. The first respondent is already dead and the petition stands dismissed as against fourth respondent. 2] On 7 th March, 2009, this court issued Notice for final disposal at the stage of admission. The challenge in this petition under Article 227 of the Constitution of India is to the order passed by the District Court by which application for condonation of delay in preferring an appeal was dismissed. The petitioner applied for review of said order. The review petition has also been dismissed and the order passed on the review petition is also challenged by filing this petition. 3] The petitioner is the original plaintiff. The suit for specific performance of an agreement of sale of immovable property was filed by the petitioner. KBP 3292-06.sxw 2 The suit was dismissed by judgment and decree dated 22 nd April, 1992. On 31 st July,1992 the petitioner preferred an appeal along with application for condonation of delay. The said application has been rejected by the learned District Judge by holding that there was no sufficient cause for condoning the delay of about 90 days. 4] It is stated in the application for condonation of delay that an application was made by the petitioner for obtaining certified copy of the judgment and decree on 23 rd April, 1992. The case is that on 25 th June, 1992, the certified copy of only the judgment was delivered. As a certified copy of decree was not delivered to the petitioner, a separate application was made for obtaining a certified copy of the decree. It is stated that on the basis of the said application, the certified copy of the decree was received. A contention is raised that the delay was caused in preferring an appeal as there was a delay in receiving the certified copy of the decree. It is contended that the certified copy of the decree was made available on 30 th July, 1992. It is pointed out that the decree was signed by the learned Judge on 8 th June, 1992. 5] In the impugned order, the learned District Judge has observed that the application was not maintainable as against the first respondent as he had already died. The only observation made by the learned Judge is that the grounds mentioned in the application are not good and sufficient for condoning the delay. 6] A liberal and justice oriented approach is contemplated while deciding an application under Sections of the Limitation Act, 1963. Considering the reasons mentioned in the application for condonation of delay there was more than sufficient explanation for condonation of delay of about 90 days. The learned District Judge has taken a very hyper-technical approach. The delay ought to have been condoned subject of payment of costs to the KBP 3292-06.sxw 3 contesting respondents. Considering the facts and circumstances of the case, the amount of costs is quantified at Rs.5,000/-. 7] Hence, I pass the following order: (a) The impugned judgment and order is set aside and the Misc. Civil Application No.434 of 1992 is hereby allowed. The delay in preferring the appeal stands condoned. It is made clear that the present petition stands dismissed as against respondent Nos.1 and 4 and therefore the appeal can proceed only against the respondent Nos.2 and 3. (b) The petitioner is directed to pay costs of Rs.5,000/- to respondent Nos.2 and 3 within a period of eight weeks from today. The deposit of costs in the District Court will be treated as sufficient compliance. (c) Writ petition is allowed in above terms. ( A.S.OKA, J. )