1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPAL FROM ORDER 11 OF 2009. WITH CIVIL APPLICATION NO.1252 OF 2009. Pratap S/o Champatro Tidke and others ...Appellants . VERSUS. Gangabai W/o Marotrao Rajegore and others. ...Respondents. Mr. P.R.Katneshwarkar,Advocate for Appellants. Mr. U.S.Malate,standing counsel for respondents. (CORAM : P.R.BORKAR,J ) DATE : 10thSeptember,2009. PER COURT : 1. This appeal is directed against the dismissal of Misc. R.J.E.No.187 of 2007 by the District Judge-2 Nanded on 19.09.2008, which was an application for restoration of Regular Civil Appeal No.136 of 2004 filed in the Court of District Judge,Nanded, which came to be dismissed in default. 2. Brief facts, relevant for decision of this appeal, may be stated as follows: The present respondent filed Civil Suit bearing Regular Civil Suit No. 111of2001 for partition and separate possession with prayer for cancellation of sale deed 2 dated 23.6.1998 executed by the defendants and perpetual injunction. The said suit was decreed. As against the same, the present appellants filed an appeal bearing Regular Civil Appeal No. 135 of 2004 in the Court of District Judge, Nanded. The appeal came to be dismissed in default on 16.11.2007. Thereafter, Misc.R.J.E.No.187 of 2007 was filed with submssion that one Mr. Kumbhekar was engaged as advocate by the appellants. However, Mr. Kumbhekar has expressed desire that Mr. S.B.Choudhari advocate would argue the appeal and handedover the papers to the present appellant no.1 Pratap. However, he failed to hand over the papers to Shri Choudhari, as a result, the appeal was not attended by either and it came to be dismissed. 3. The application is opposed on the ground that it is only signed by only one of the appellant. The learned District Judge-1 Nanded heard the application for restoration and same is rejected. It is true that, negligence is very clear, as much as papers could have been handedover directly to Mr.Choudhary Advocate. However, the matter involves rights regarding immovable property. The sale deed is also challenged. In this view of matter, I am of the opinion that application should have been allowed with some costs. 4. Considering the facts and circumstances, the appeal is allowed. The order passed by the learned District Judge-2 Nanded on 19.09.2008 in Misc. R.J.E. 187 of 2007 is hereby setaside. The Regular Civil Appeal No.136 of 2007 is directed to be restored to its original file on the condition that the present appellants shall deposit Rs.5000/- as costs to the respondent Gangabai Marotrao Rajegore within four weeks. Incase, such deposit is made 3 in time, appeal be restored. The learned District Judge shall take appeal on its original file and shall hear it expeditiously and decide within three months. The parties to appear before the Appellate Court on 10th November 2009 and co-operate. In case the costs are not deposited in time given this appeal from order shall stand dismissed. 5. In view of dismissal of appeal, Civil Application No.1252 of 2009 stands disposed of. ( P.R.BORKAR, J. ) MTK/AO11.09