KBP 1827-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1827 OF 2009 Yashwant Tulshiram Waghmare (since deceased through his Lrs. Laxman Yashwant Waghmare and ors. ..Petitioners Vs. Dashrath Tatya Patil ..Respondent ......... Mr.S.S.Jinsiwale, for petitioner. Mr.Sameer Kumbhakoni, for respondent. ......... CORAM : A.S.OKA, J.. DATE : 13 th August, 2009. P.C. : 1] Rule. Learned advocate for the respondents waives service. Taken up for final disposal 2] By this writ petition under Article 227 of the Constitution of India, the petitioners have challenged the order passed by the District Court by which an application for condonation of delay in preferring an appeal has been rejected. The predecessor of the petitioner was the original defendant and the respondent is the plaintifs. The suit filed by the respondents was decreed on 30 th July, 2002. An appeal along with application for condonation of delay was filed on 17 th January, 2007. A case made by the predecessor of the petitioners was that he was not aware of the decree and he became aware of the decree on or about 26th September, 2006, when he received a notice of execution application. The application for condonation of delay was opposed by respondent by pointing out that there is no sufficient cause. The learned KBP 1827-09.sxw 2 District Judge, by the impugned order, rejected the said application by holding that the case is of deliberate delay and negligence on the part of petitioner. 3] The learned counsel for the petitioners has relied upon the affidavit of the learned advocate who was representing the original petitioner before the trial court. He submitted that considering the said affidavit, sufficient cause was made out. The learned counsel appearing for the respondents supported the impugned order by pointing out that the original petitioner was negligent and he never kept the track of the suit. He submitted that the entire blame cannot be shifted on the advocate. 4] I have carefully considered the submissions. The predecessor of the petitioners had engaged an advocate to represent in the suit filed by respondents. The said advocate by filing an affidavit in support of the delay condonation application accepted the lapse on his part of not attending to the suit and not informing the predecessor of the petitioners of the dates in the suit. In the affidavit he has accepted that he was not regularly attending the court for the reasons set out therein and he failed to inform the predecessor of the petitioners about the decree passed. The predecessor of the petitioners had engaged an advocate. There is some default on the part of advocate who has fairly accepted the same by filing an affidavit on record. In view of what is stated by the advocate, the District Court ought to have accepted the case made out by the predecessor of the petitioners that he became aware only on 26 th September, 2006 about the decree when he received a notice of execution application. The further delay in preferring appeal from 26 th September, 2006 has been explained in the application for condonation of delay. The predecessor of the petitioners was required to make inquiry and to take steps for obtaining certified copy of the impugned judgment and decree. KBP 1827-09.sxw 3 5] While deciding application under Section 5 of the Limitation Act, 1963 a liberal and justice oriented approach is contemplated. In the present case, the District Court has taken a hypertechnical approach. The delay deserves to be condoned subject to payment heavy costs. The costs can be quantified at Rs.7,500/-. It is stated by the advocate for petitioner that he has handed over a demand draft in the sum of Rs.7,500/- drawn in favour of respondent to the advocate for respondent. The advocate for respondent has accepted the same without prejudice to the rights and contentions of the respondent. Hence, I pass the following order: (a) The impugned judgment and order is quashed and set aside. (b) Misc. Civil Application No.42 of 2007 filed before the District Court is allowed subject to payment of costs of Rs.7,500/- (c) As the amount of costs is already paid, the appeal preferred by the petitioners shall be registered. The appeal is of year 2007 and, therefore, the District Court is directed to decide the same expeditiously and in any event before the end of this year. (d) Writ petition is allowed in the above terms. ( A.S.OKA, J. )