1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4024 OF 2008 (Rakesh Gopichand Tayal vs. Krishna Damodhar Deshpande) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. NOVEMBER 10, 2008. Heard Shri Shrivastava, learned counsel for the petitioner and Shri Aurangabadkar, learned counsel for the respondent. The judgment in Regular Civil Suit No. 90 of 2005 decided on 20.9.2006 was challenged in appeal before the 2nd Ad-hoc District Judge-2, Nagpur, and as that appeal was belated, Misc. Civil Application No. 292 of 2008 was filed for condoning delay. By the impugned order dated 05.09.2008, the Ad-hoc District Judge-2, Nagpur, refused to condone delay. It may be mentioned here that initially before the trial Court, an application under Order 9, Rule 13 of Civil Procedure Code was filed but later on it was not prosecuted and thereafter the proceedings before the Ad-hoc District Judge-2, Nagpur, came to be filed. In view of the judgment of the Hon'ble Apex Court in the case of Shyam Sunder Sarma vs. Pannalal Jaiswal, reported at AIR 2005 SC 226, it is 2 apparent that rejection of prayer for condonation of delay results in rejection of appeal also and therefore, remedy in such circumstances is to approach this Court in Second Appeal under Section 100 of Civil Procedure Code. However, Shri Shrivastava, learned counsel has tried to make a distinction by pointing out that in facts considered by the Hon'ble Apex Court, after rejection of prayer to condone delay, the appellate Court had also passed an order on Exh. 1 (appeal memo) and rejected it. He points out that in present facts, there is no such orders separately passed on Exh. 1 and therefore, the present writ petition is maintainable. Shri Aurangabadkar, learned counsel, on the other hand, states that passing of order on Exh. 1 is mere formality as delay has not been condoned. He states that it is apparent that the appeal has also been rejected by implication and further points out that Second Appeal is the only remedy, the scope of consideration in such challenge is also restricted accordingly. Though, in present facts it appears that the Ad-hoc District Judge-2, Nagpur, did not pass any orders on Memo of appeal but then in view of the order dated 5.9.2008, it is apparent that the delay in filing that appeal has not been condoned 3 and consequently the appeal stands rejected. The judgment of the Hon'ble Apex Court mentioned above, therefore, squarely applies to even these facts. But as the formality of passing order below the Appeal memo has not been completed, I find it proper to direct the Ad-hoc District Judge-2, Nagpur, to pass appropriate orders on appeal memo also with liberty to present petitioner to challenge that order before appropriate forum in accordance with law along with impugned order in this writ petition. Writ Petition is, therefore, partly allowed. The Ad-hoc District Judge-2, Nagpur, to pass appropriate orders below appeal memo as early as possible and in any case within a period of 10 days after the communication of this order to it. The parties are directed to appear before the said court for that purpose on 17.11.2008. Rule accordingly. No order as to costs. Till then, status quo in relation to possession of the petitioner, as on today. Certified copy expedited. JUDGE *GS.