-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.965 of 2008 Pandurang Narayan Khade ..Petitioner vs. Indira Chandrakant Patel ..Respondent Shri P.G.Karande for petitioner. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 13th February, 2008 13th February, 2008 13th February, 2008 P.C. P.C. P.C. 1. Heard Shri Karande appearing for the petitioner. Since the matter is between the petitioner/original appellant in Reg.Civil Appeal No.330 of 2005 and the Court, hence, it is not necessary to issue any notice to the respondent to this writ petition and to the appeal. 2. The petitioner is aggrieved by the order and decree passed in Special Civil Suit No.284 of 1987 and the judgment and decree dated 31st March, 1997 has been appealed by him by filing Reg.Civil Appeal. 3. It appears that the delay was condoned by the lower Appellate Court. The appeal was -2- registered and even the stay application was heard. On the stay application after hearing the petitioner/original appellant, the order was passed directing the petitioner to prepare the paper book and file it so also deposit the costs which has been awarded by the Trial Court. Initially no compliance was made with these conditions, but extension was sought which was also granted. However, in the opinion of the learned Appellate Court even thereafter the conditions were not complied with and that is how the subject appeal was dismissed for want of prosecution. 4. Shri Karande brings to my notice the fact that in the very appeal an application (Exh.37) was filed seeking time to deposit the costs. That application was made on 13th July, 2007 and it appears that the respondent opposed the said request. However, the Trial Court has observed that appeal had been dismissed on 29th June, 2007, still the lower Appellate Court granted liberty to the petitioner/appellant to deposit the amount on clear understanding that this deposit shall have no bearing on merits of the appeal and the order dated 21st July, 2007 below Exh.36. -3- 5. It is difficult to reconcile the order dated 21st July, 2007 with the direction issued by the lower Appellate Court. If the lower Appellate Court had extended the time for compliance, then, it was its plain duty to restore the appeal so also the stay application to file and dispose of the same on merits and in accordance with law. The petitioner is aggrieved by that course of action not being adopted. 6. In the peculiar facts of this case, summoning the respondent here would only delay the proceedings. Instead the order under challenge is set aside. The appeal is restored to file for disposal on merits and in accordance with law. The lower Appellate Court to endeavour and dispose of the appeal as expeditiously as possible and by 31st January, 2009. Petition is disposed of. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)