1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CIVIL APPLN. NO.: 10218 OF 2007 IN WRIT PETITION NO.: 3866 OF 2004 AND WRIT PETITION NO.: 3866 OF 2004 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. CIVIL APPLN. NO.: 10218 OF 2007 IN WRIT PETITION NO.: 3866 OF 2004 AND WRIT PETITION NO.: 3866 OF 2004 *** 1. Heard. As the challenge is to order refusing to condone delay in filing Regular Civil Appeal, application is allowed and writ petition is taken up for final hearing immediately. 2. According to Advocate Mrs. Ansari as petitioner/ defendant had no knowledge of passing of decree, the delay ought to have been condoned. According to learned counsel for Respondent/ original plaintiff the present writ petition itself is not maintainable. 3. It is apparent that trial Court had delivered ex-parte judgment and decree against present petitioners. Instead of 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CIVIL APPLN. NO.: 10218 OF 2007 IN WRIT PETITION NO.: 3866 OF 2004 AND WRIT PETITION NO.: 3866 OF 2004 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. moving an application under Order IX Rule 13 C.P.Code the petitioners filed Regular Civil Appeal as they were advised and as that Regular Civil Appeal was belated they filed MARJI No.122 of 1999 for condonation of delay. That delay has not been condoned. In the light of judgment of Honourable Apex Court in the case of "Shyam Sunder Sarma V/s Pannalal Jaiswal and others" reported in AIR 2005 S.C. 226 it is apparent that in this situation, the remedy of filing a second appeal under section 100 C.P.Code is available to the petitioners. 4. Mrs. Ansari argues that this position is settled in 2005 while the MARJI application was moved way back in 1999. She, therefore, seeks leave to convert writ petition into second appeal. Accordingly writ petition is allowed to be converted in to second appeal. 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CIVIL APPLN. NO.: 10218 OF 2007 IN WRIT PETITION NO.: 3866 OF 2004 AND WRIT PETITION NO.: 3866 OF 2004 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Necessary amendments to be carried out within two weeks from today. 5. List the matter for admission before appropriate Bench thereafter. 6. Interim orders, already operating in favour of the petitioner, to continue till 6th May, 2011. [B.P.DHARMADHIKARI, J.] Dated:08/04/2011. ans/10218