(1) CA. 3327.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 3327 OF 2009 IN SECOND APPEAL (ST.) NO. 5041 OF 2009 Chandarsing S/o Kewalsingh Rathod .. Applicant VERSUS Sumanbai W/o Datta More .. Respondent WITH SECOND APPEAL (ST.) NO. 5041 OF 2009 Chandarsing S/o Kewalsingh Rathod .. Applicant VERSUS Sumanbai W/o Datta More .. Respondent AND CIVIL APPLICATION NO. 3328 OF 2009 IN SECOND APPEAL (ST.) NO. 5041 OF 2009 Chandarsing S/o Kewalsingh Rathod .. Applicant VERSUS Sumanbai W/o Datta More .. Respondent Mrs. S.G. Chincholkar, Advocate for the applicant Mr. V.P. Raje, Advocate h/f. Mr. G.P. Shinde, Advocate for the Respondent CORAM : A.V. NIRGUDE, J. DATED : 31ST JULY, 2009 P.C.:- 1] Heard. The appellant seeks condonation of delay caused in filing of the appeal. (2) CA. 3327.2009 The delay deserves to be condoned, firstly because it appears the appellant’s Advocate was not present when the lower Appellate Court heard the appeal. I am aware that in the judgment copy, name of the appellant’s Advocate is mentioned. But the appellant filed an affidavit in this Court stating that his Advocate was not present when the appeal was taken up for hearing. To this statement, there is no reply filed by the respondent. I, therefore, hold that the appellant’s Advocate was not present when the appeal was heard in the lower Appellate Court. In view of Rule 17 Order 41 of the Code of Civil Procedure, the lower Appellate Court would have at the most, dismissed the Appeal in default, but instead of dismissing it the learned Judge decided the appeal on merits. The other grounds that the appellant’s Advocate did not inform the fact that the appeal was decided by the lower Appellate Court, to the appellant and that thereafter, he fell ill for a period of three months are also believable. I am, therefore, inclined to condone the delay. The delay is condoned. Rule made absolute in the above terms in Civil Application no. 3327 of 2009. 2] The Appeal is taken up for hearing. Since the appeal was decided on merits in the absence of (3) CA. 3327.2009 appellant and his Advocate, it is squarely against the provisions of Rule 17 Order 41 of the Code of Civil Procedure. Therefore, the judgment and order of the lower Appellate Court deserves to be set aside. The appeal deserves to be remanded back to the lower Appellate Court for deciding it on merits, in presence of the appellant’s Advocate. However, this indulgence is shown subject to the appellant's paying costs of Rs.5000/-. On the appellant’s depositing costs of Rs.5000/- in the lower Appellate Court, on or before 31.8.2009, the appeal shall stand allowed in terms of the order passed above. In the event, the appellant deposits the costs, as directed above the lower Appellate Court, shall decide the appeal on merits within six months from 31.8.2009. 3] In view of the order passed above, Civil Application no. 3328 of 2009 for grant of stay, does not survive and stands dismissed as infructuous. Sd/- (A.V. NIRGUDE, J.) arp