: 1 : 6561-11-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6561 OF 2011 Farid Gulab Khatik & Anr. .. Petitioners v/s. Sau. Indumati Adhik Pawar .. Respondents ......... Mr. N.N. Sandhyanshiv for the petitioners Mr. N.R. Bubna for respondent no.1 Mr. S.D. Rayrikar, AGP for respondent no.2 ......... CORAM : R.Y.GANOO, J DATE : 5th OCTOBER,2011. P.C. : 1. Rule. Rule is made returnable forthwith. Learned advocate appearing on behalf of the respondent no.1 waives service. Similarly learned advocate appearing on behalf of respondent no.2 waives service. By consent, petition is taken up for hearing. 2. The father of the petitioner had filed R.C. Appeal No.47 of 2000 in the Court of learned Additional District Judge, Malegaon, Dist. Nashik. : 2 : 6561-11-wp=.sxw Father of the petitioner expired on 20th August, 2008 and the purshis to that effect was placed before the Court by the respondents in the appeal. On account of that, the appeal came to be dismissed as abetted. Thereafter, the petitioners filed an application namely Civil Misc. Application No.14 of 2010 for condonation of delay in filing application and bring them on record. That application was rejected by learned Adhoc District Judge-I, Malegaon, Dist. Nashik by order dated 19th April, 2010. 3. After having heard learned advocates on both sides and after having perused the relevant dates and the reasons mentioned in the Civil Misc. Application No.14 of 2010, I am inclined to observe that the petitioners must get a chance to prosecute the appeal on merits rather suffering dismissal of this appeal in the manner in which they have suffered. The learned District Judge could have granted the said application by imposing the costs so that the petitioner would have get the chance to present their case. Hence, I am inclined to allow the petition. Petition is disposed of by passing following order. ORDER (i) Order dated 19th April, 2011 passed by learned Adhoc District Judge-1, Malegaon in Civil Misc. Appeal No.14 of 2010 is set aside. : 3 : 6561-11-wp=.sxw Civil Misc. Appeal No.14 of 2010 is granted. (ii)The said Appeal No.47 of 2000 is restored to the file of the District Court. The petitioner shall carry out amendment on or before 11th November, 2011, serve a copy of the amended appeal memo upon advocate for the respondent in the trial Court. Learned District Judge before whom the aforesaid Appeal No.47 of 2010 will be placed for final hearing shall hear and dispose of the said appeal on merits on or before 31st December, 2011. (iii) The petitioner shall pay to the respondent no.1 costs of Rs.7,000/-. Costs shall be paid by the petitioner to respondent no.1 or advocate for respondent no.1 directly on or before 9th November, 2011. If the costs are paid, amendment shall take effect. If the costs are not paid, the order dismissing Civil Misc. Application No.14 of 200 shall stand. (iv) Till the disposal of the main Civil Appeal No.47 of 2010 execution proceedings in R.D. No.86 of 2000 presently pending before the learned Civil Judge, Junior Division, Satna, Dist. Nashik are stayed. (R.Y.GANOO, J.)