gst 1 wp563.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. WRIT PETITION NO. 563 OF 2011. Dinkar Manaku Kadam & Ors. ... .... .... ..Petitioners. V/s Shrirang Manaku Kadam... .... ... ..Respondent. Mr.T.S.Ingle, Adv. For the petitioners. Mr.Sandesh D. Patil, Adv. For the respondent. CORAM: B.R. GAVAI, J. 17th March, 2011 PC: Rule. Rule made returnable forthwith. By consent of parties taken up for hearing. The petitioner by way of present petition challenges the order dated 11.10.2010 vide which an application filed by the present petitioner for condonation of delay in filing the appeal came to be rejected. 2. The respondent-plaintiff has filed a suit being Regular Civil Suit No. 125/1991 for partition and separate possession. Suit property consists of various agricultural lands as well as house property. Vide judgment and order dated 31.8.1996 suit was partly decreed. Said decree was challenged by way of an Appeal NO.633/1999. Vide judgment and decree dated 24.1.2006 learned trial Court partly allowed the appeal. Thereafter respondent-decree holder filed decree Application No.11/2006. It appears that in the said proceedings an application for appointment of Court Commissioner was moved. Same was allowed. The Court Commissioner submitted his report and accepting the said report vide judgment and order dated 1.9.2009 the learned Civil Judge, Junior Division, Islampur allowed the application filed by the respondent-decree gst 2 wp563.11.sxw holder. After receipt of possession warrant the petitioner filed an appeal along with an application for condonation of delay. Same is rejected. Hence the present petition. 3. Shri Ingle, learned counsel appearing on behalf of the petitioner submits that since the petitioners are illiterate and agriculturists they had engaged an advocate and after the Court Commissioner’s report the advocate engaged by them had assured that he will take proceedings for objecting to the report of the Court Commissioner. He submits that however the learned counsel did not take any steps and as such only after receipt of possession warrant petitioners came to know about acceptance of the Court Commissioner’s report by the learned Executing Court. He submits that in the interest of justice the application ought to have been allowed. 4. Shri Patil, learned counsel appearing on behalf of respondent vehemently opposes the petition. He submits that the petitioners have not been at all diligent and have given false excuses in the application which has also been found to be so by the learned Appellate Court. He therefore prays for dismissal of writ petition. 5. It can be seen that the present dispute is between the brothers and sisters inter se. It is not as if that the present petitioners have been negligent in prosecuting their remedies. After the judgment and decree was passed by the learned trial Court the petitioners filed the appeal before the Appellate Court and the learned Appellate Court had partly allowed the appeal. It appears that on account of negligence on the part of counsel engaged by the petitioners they could not be properly represented in the proceedings before the Executing Court. It is pertinent to be noted that the parties are brothers and sisters of each other. I therefore find that instead of foreclosing the doors of justice on technical ground it will be in the interest of justice that the parties are permitted to get the dispute settled in accordance with law. It is further to be noted that a litigant cannot be made to suffer on account of negligent on the part of a gst 3 wp563.11.sxw Counsel. In so far as the prejudice that is caused to the respondent is concerned, same can be compensated by saddling the petitioner to pay some costs. 6. Hence writ petition is allowed. Rule is made absolute in terms of prayer clause (b). However same shall be subject to the costs which are quantified at Rs.15,000/- to be deposited in the Appellate Court within a period of four weeks from today. Condition of deposit of costs is pre-condition for allowing the writ petition. On failure to deposit the costs within stipulated period, writ petition shall stand dismissed automatically.