1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8697 OF 2007 Sawkar Abbas Shikalgar & Ors. .. Petitioners Versus Hasan Abbas Shikalgar .. Respondents Mr.Pratap Patil for petitioners CORAM : S.C.DHARMADHIKARI, J. DATE : 26th February 2008 P.C. . This petition is directed against the order below Exh.1 in Misc.Civil Application No.1 of 2007. The application is filed by the present petitioner/applicant for condonation of delay of 22 months and 11 days, which has occurred in filing of an appeal against the judgement and decree of the Civil Judge, Junior Division, Karad in Regular Civil Suit No.399 of 2003. The decree 2 is dated 21st April 2005 and is of partition. It is pointed out in the application for condonation of delay that the present petitioners enquired with the original plaintiff as to why the suit was filed as the partition has already taken place. An assurance was given by the original plaintiff that he would withdraw the suit. Therefore, no written statement was filed. The suit was decreed ex parte. In execution proceedings, notices were issued to the present petitioners and that is how, they became aware of the decree and that is the reason for delay. It is contended that the family members were involved in litigation. The dispute is of partition of immovable properties of family. It being a family dispute and all parties to the litigation are brothers and sisters, they bonafide believed that the other brother would now withdraw the proceedings and agree to an amicable settlement. That is how the meetings proceeded. When that did not result in the suit 3 being withdrawn but rather it being decreed ex parte, that they filed the subject appeal. The learned Judge in para 3 of the impugned order has observed that hyper technical view should not be taken while considering the application of the present nature. Yet, he has precisely done that. In the instant case, the family members wanted an opportunity to end the dispute amicably. It is after the efforts fail that the appeal was filed. By imposing appropriate conditions the delay could have been condoned. 2. In the result, the impugned order is quashed and set aside. Delay in filing appeal is condoned and subject to petitioner paying cost quantified at Rs.1000/- to be paid to respondent - original plaintiff in the trial court within two weeks from today. Upon costs being tendered and proof produced of the same, appeal to be numbered thereafter in accordance with law. All contentions are kept open. 4 (S.C.Dharmadhikari, J)