IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 108 OF 2008 IN SECOND APPEAL (ST.) NO. 898 OF 2008 Smt.Ujwala Vijaykumar Marathe...... ...... ...... Applicant V/s Vijaykumar Ramchandra Marathe...... ...... ...... Respondent. Mr.M.S.Karnik, Adv. For the applicant. Mr.S.M.Sabrad, Adv. For the respondent. CORAM: R.V. MORE, J. 16th DECEMBER, 2008. PC: Civil application is taken out for condonation of delay of 3 years and 177 days. The respondent filed petition for divorce on the ground of desertion against the applicant. The learned trial Judge was pleased to grant decree of divorce. However respondent was directed to pay to the applicant maintenance at the rate of Rs.2500/- towards maintenance of the applicant and minor won. The custody of minor son was also granted to the applicant. Decree of divroce was not challenged by the applicant. However the respondent preferred an appeal before the lower appellate Court challenging the order regarding maintenance and custody of minor child. The appeal was decreed ex-parte on 22.4.2004. It was case of the applicant that she 1 already appointed an advocate to defend the proceedings of the application. Her advocate was looking after the said proceedings. However the advocate did not remain present and therefore ex-parte order came to be passed thereby setting aside the order of maintenance as well as custody of the minor child. It is the case of the applicant that for the first time she came to know about impugned order in the month of September, 2007 when the respondent tried to execute the ex-parte decree. Thereafter she contacted her Advocate and found that he neither remained present nor informed the applicant of the impugned order passed. The applicant thereafter after obtaining certified copy preferred the aforesaid second appeal on 25.10.07. Mr.Sabrad, learned advocate for the respondent opposes condonation of delay by filing reply and submits that in view of the conduct of the applicant delay should not be condoned. He also states that the applicant has not come to the Court with clean hands and therefore prays for dismissal of the application. From the aforesaid facts it is clear that the applicant had engaged services of a lawyer and the impugned decree was passed ex- parte in the absence of her said lawyer. The applicant has on affidavit stated that the lawyer did not remain present at the time of hearing nor he communicated passing of the impugned order. It is further stated on affidavit that she came to know of passing of the impugned order in September, 2007 when the respondent tried to execute the 2 decree. In my considered view the applicant has shown sufficient ground for condonation of delay. Apart from this, the applicant' s son who is hardly nine years' old is staying with the applicant since his birth. In view of this I am of the opinion that the applicant will suffer great prejudice if the delay is not condoned. In the aforesaid facts and circumstances civil application is allowed in terms of prayer clause (a). Civil application stands disposed of. 16.12.08 (R.V. MORE, J.) 3