1803sa462.08.sxw 1/4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO. 462 OF 2008 Gulab Parasramji Satone – Appellant - Versus- Maroti Parashramji Satone – Respondent Shri A. S. Chandurkar, Advocate for the appellant. Shri R. R. Joharapurkar, Advocate for the respondent. ------------------------------------------------------------------------------------------------------------------------------- CORAM: B. P. DHARMADHIKARI, J . DATED : 18TH MARCH, 2009. P. C. : 1. The original defendant has filed this second appeal challenging order dated 05/11/2008 passed by the Principal District Judge, Wardha in M. J. C. No. 95 of 2008. He filed that MJC for condonation of delay in filing regular civil appeal under Section 96 of the Civil Procedure Code. The appellant was original defendant in regular civil suit No. 202 of 1992 which was decreed partly on 22/7/2005. Part of that decree allowing counter claim of defendant was challenged by original plaintiff 1803sa462.08.sxw 2/4 in regular civil appeal No. 48 of 2006 and that appeal was allowed on 04/3/2008 by the Ad-hoc District Judge-II, Wardha. The present appellant/original defendant then filed second appeal No. 167 of 2008 on 25/4/2008 before this Court and that second appeal has been admitted on 12/6/2008 by this Court. 2. The present appellant thereafter filed first appeal under Section 96 of the Civil Procedure Code on 22/7/2008 along with prayer for condonation of delay before the District Court at Wardha. The learned Principal District Judge by the impugned order refused to condone said delay after noticing that the regular civil appeal challenging the judgment and decree of the lower court impugned in the proceedings before him was already modified on 04/3/2008 while deciding regular civil appeal No. 48 of 2006. This order refusing to condone delay has been questioned in the present second appeal in view of the judgment of Hon'ble Apex Court reported at 2005 (1) Mh. L. J.- 340 – Shyam Suner Sarma Vs. Pannalal Jaiswal & others. 3. Advocate Shri Chandurkar has contended that the judgment and decree of trial Court has merged in order dated 05/11/2008 passed in M.J.C. No. 95 of 2008 and he has relied 1803sa462.08.sxw 3/4 upon the observation of Hon'ble the Apex Court in paragraphs 8 and 9 of the above mentioned judgment. 4. Shri Joharapurkar, Advocate for respondent/plaintiff states that the merger had taken place on 04/3/2008 itself and hence on 22/7/2008 when regular civil appeal was sought to be filed by present appellant, the judgment and decree of trial Court was not in existence. 5. The facts above clearly show that the judgment and decree of trial Court dated 22/7/2005 was modified by the lower appellate Court on 04/3/2008 itself. Second appeal was then filed by present appellant bearing No. 167 of 2008 and it has been admitted. After the admission of second appeal, on 22/7/2008, the appellant approached lower appellate Court for condoning delay in filing regular civil appeal. He obviously wanted to challenge some adverse findings recorded by the trial Court in its judgment and decree dated 22/7/2005. As per the ratio of very same judgment, on which Advocate Shri Chandurkar relied upon in the judgment dated 22/7/2005, was not available on 22/7/2008 when application for condonation of delay was filed by the present appellant. The application for 1803sa462.08.sxw 4/4 condonation of delay and effort to file regular civil appeal was, therefore, itself misconceived. The present second appeal 462 of 2008, therefore, does not raise any substantial question of law, the same is, therefore, dismissed. JUDGE wwl