1 SA.NO.720.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 720 OF 2009 1] Azimuddin S/o Amioddin @ Miyakhan,Age 62 years Occup. Nil,R/o Siddhi Peth, Hyderabad, (Andhra Pradesh) 2] Moinuddin S/o Aminoddin @ Miyakhan Age 65 years, Occupation Photographer, R/o as above. . Appellants V E R S U S 1] Mahadu S/o Tukaram Ghuge,Age 63 Years,Occupation Agriculture,R/o Meskheda, Tq. Mantha, District Jalna. 2] Ashruba S/o Tukaram Ghuge (died per heirs and L.Rs. 2A] Udhav S/o Ashruba Ghuge,Age 35 years,Occupation Agriculture,R/o Meskheda, Tq. Mantha, District Jalna. 2B] Babasaheb S/o Ashruba Ghuge, Age 36 years Occupation Agriculture R/o Meskheda, Tq. Mantha, District Jalna. 2C] Mahadu S/o Ashruba Ghuge,Age 31 years,Occupation Agriculture,R/o Meskheda, Tq. Mantha, District Jalna. .Respondents WITH CIVIL APPLICATION NO. 6311 OF 2009 IN SECOND APPEAL NO. 720 OF 2009 1] Azimuddin S/o Amioddin @ Miyakhan,Age 62 years Occup. 2 SA.NO.720.09 Nil,R/o Siddhi Peth, Hyderabad, (Andhra Pradesh) 2] Moinuddin S/o Aminoddin @ Miyakhan Age 65 years, Occupation Photographer, R/o as above. . Applicants V E R S U S 1] Mahadu S/o Tukaram Ghuge,Age 63 Years,Occupation Agriculture,R/o Meskheda, Tq. Mantha, District Jalna. 2] Ashruba S/o Tukaram Ghuge (died per heirs and L.Rs. 2A] Udhav S/o Ashruba Ghuge,Age 35 years,Occupation Agriculture,R/o Meskheda, Tq. Mantha, District Jalna. 2B] Babasaheb S/o Ashruba Ghuge, Age 36 years Occupation Agriculture R/o Meskheda, Tq. Mantha, District Jalna. 2C] Mahadu S/o Ashruba Ghuge,Age 31 years,Occupation Agriculture,R/o Meskheda, Tq. Mantha, District Jalna. .Respondents ... Smt.Geeta Deshpande,Advocate for Appellants- Applicants Smt.S.J.Thorat,Advocate for respondents ... AND CIVIL APPLICATION NO. 12797 OF 2009 IN SECOND APPEAL NO. 720 OF 2009 1] Mahadu S/o Tukaram Ghuge,Age 63 Years,Occupation Agriculture,R/o 3 SA.NO.720.09 Meskheda, Tq. Mantha, District Jalna. 2] Ashruba S/o Tukaram Ghuge (died per heirs and L.Rs. 2A] Udhav S/o Ashruba Ghuge,Age 35 years,Occupation Agriculture,R/o Meskheda, Tq. Mantha, District Jalna. 2B] Babasaheb S/o Ashruba Ghuge, Age 36 years Occupation Agriculture R/o Meskheda, Tq. Mantha, District Jalna. 2C] Mahadu S/o Ashruba Ghuge,Age 31 years,Occupation Agriculture,R/o Meskheda, Tq. Mantha, District Jalna. .Applicants. V E R S U S 1] Azimuddin S/o Amioddin @ Miyakhan,Age 62 years Occup. Nil,R/o Siddhi Peth, Hyderabad, (Andhra Pradesh) 2] Moinuddin S/o Aminoddin @ Miyakhan Age 65 years, Occupation Photographer, R/o as above. Respondents. ... Smt.S.J.Thorat,Advocate for Applicants Smt.Geeta Deshpande,Advocate for Respondents ... CORAM : A.V. NIRGUDE, J. DATED : 3rd MARCH, 2010 ORAL JUDGMENT : 1] By consent the appeal is taken up for hearing and final disposal. 4 SA.NO.720.09 2] This Second Appeal is filed against the order passed by the Vth Adhoc District Judge, Jalna, rejecting the appellant’s application seeking condonation of delay which occurred in filing of the First Appeal against impugned Judgment and decree in Civil Suit No. 141 of 1979. 3] The case of the appellants in short can be said as under- They stated that the respondent no.1 and original respondent No.2-Ashruba filed the suit bearing Regular Civil Suit No. 141 of 1979 in the Court of Civil Judge Junior Division Partur and showed them as resident of village Meskheda. They said, they were not residing at Meskheda at that time, therefore, they did not get summons of the suit. They said that they learnt about the passing of the impugned decree only in 2002, during some other litigation, which was pending between these two parties. In the meantime, the original plaintiff No.2 Ashruba died and his legal representatives were made respondents to the application seeking condonation of delay. The notice of the application was served on the respondent No.1 Mahadu and respondent no.2/A- Udhav, but notice as against the respondent Nos. 2/B and 2/C was not served and since the appellants did not take steps for effecting the service of notice, the application was dismissed as against them. 5 SA.NO.720.09 . The learned Advocate appearing for the respondents stated that she now appears for all respondents. She pointed out that the respondents did not get sufficient opportunity to file reply- affidavit to oppose the application seeking condonation of delay. In my view, instead of examining the correctness of the impugned order, it would be better to set aside the order and to allow the parties to agitate their case on merits. Hence, following order- ORDER I] The Second Appeal is allowed. II] The impugned order dated 18.08.2006 in M. C. P. No. 22 of 2003 stands set aside. III] The Application is remanded back to the lower Court. IV] The learned Judge of the lower Court shall allow the respondents to file a reply-affidavit within four weeks from the date of their first appearance and thereafter shall decide the application on merit as early as possible within eight weeks from filing of the reply. V] Record and Proceeding of the lower court be sent back. 6 SA.NO.720.09 VI] The Civil Application No.6311 of 2009 filed by the Appellants/applicants for stay and Civil Application No.12797 of 2009 filed by respondents Mahadu Tukaram Ghuge and others stand disposed of. Sd/- (A.V. NIRGUDE, J.) MTK/ok