1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 559 OF 2010 Narayan Munjaji Shinde Age 34 years, Occu. Agriculture, R/o Ithlapur, Tq. & Dist. Parbhani. .. APPELLANT (Ori. Defendant) VERSUS Laxman S/o Ganeshrao Khating, age 28 years, Occu. Agriculture, R/o Sayala (Khating), Tq. & Dist. Parbhani. .. RESPONDENT (Ori. Plaintiff) ... Shri S.B. Ghatol Patil, Advocate for Appellant Smt. Rashmi P. Gour, Advocate for respondent CORAM :- S.V. GANGAPURWALA, J. DATE : 8th SEPTEMBER, 2010. ORAL JUDGMENT: Rule, Rule made returnable forthwith, with the consent of parties. 2. The present appellant is the original defendant. The present respondent had instituted 2 Regular Civil Suit No. 271 of 2006 against the present appellant for specific performance of contract. The said suit came to be decreed on 24th September, 2009. Therefore, the present appellant filed an application for setting aside the exparty decree. The said application was rejected by the Trial Court, as not maintainable. Thereafter, the appellant, after about 11 months, filed appeal before the District court along with application for condonation of delay. The application for condonation of delay was numbered as 117 of 2009. The District Judge-2, Parbhani, dismissed the said Misc. Application bearing No. 117 of 2009. The appellant assails the said Judgment and order in the present Second Appeal. 3. It is submitted by the learned Counsel for the appellant that under wrong advice, appellant had preferred application for setting aside the exparty decree. After rejection of the same, the appellant could not prefer appeal immediately as his old aged parents are ill, and the appellant was also not keeping well, so also because of adverse economic position, the appeal 3 could not be filed. The learned Counsel further contended that the Court below has not considered this aspect and has taken hyper technical view in rejecting the application for condonation of delay. According to him, the matter involves invaluable rights of the appellant in immovable property. 4. The learned Counsel for the respondent contended that there is an abnormal delay on the part of the appellant, no sufficient cause has been stated, as such no error can be found in the Judgment of the Court below in rejecting the application for condonation of delay. According to him, the appellant is interested only to prolong the matter. 5. It is true that the delay has been caused by the appellant in preferring the appeal. The said delay is partly due to wrong advise of the Advocate in filing application for setting aside the order and partly due to illness of appellant’s parent in not preferring the appeal, after rejection of the application for setting 4 aside the exparty decree. At the same time, it needs to be considered that the subject matter of the dispute is in respect of immovable property. The appellant pleaded that the parents of the appellant as well as appellant were not keeping good health, which can be considered as sufficient cause. At the same time because of the delay caused, the present respondent has to suffer and therefore,deserves to be compensated by way of cost. 6. In the result, I pass the following order. ORDER 1] The appeal is allowed. 2] The impugned order dated 12th April, 2010 passed by the District Judge-2, Parbhani, in MA(RJI) No. 117 of 2009 is quashed and set aside and said MA(RJI) No. 117 of 2009 is allowed on condition that the appellant shall pay cost of Rs. 10,000/- (Rs. Ten thousand) to the respondent by 30th September, 2010. Both the parties are 5 directed to appear before Appellate Court on 30th September, 2010. The Appellate Court shall thereafter, decide the said appeal within a period of six months. The execution of the Judgment and Decree passed by the Trial Court is stayed till 30th September, 2010. 3] Second Appeal is disposed of accordingly. 4] In view of disposal of Second Appeal, the Civil Application No. 12001 of 2010 is also not survive and same is disposed of. [S.V. GANGAPURWALA,J] SDM* 559.10SA