1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3050 OF 2009 Narayan Govardhandas Gujrathi, Through his General Power of Attorney, Dhananjay Narayan Gujrathi, R/o. Om Niwas, Ramdwar Park, Behind Gujral Petrol Pump, Tilak Nagar, Jalgaon, Dist. Jalgaon. ....Petitioner. Versus 1. Ramesh Govardhandas Gujrathi, R/o. 326, Galli No. 2, Near Prabhu Krishna Subhas Nagar, Dhule, Tq., Dist. Dhule. 2. Kapilaben Jagjeevandas Sugandhi, R/o. Bhawani Peth, House No. 127, Gul Ali, Pune. 3. Pushpaben Madhusdanlal Shah, R/o. House No. 734, Sant Namdeo Chowk, Pune. 4. Kanchanben Narayandas Gujrathi, R/o. Gokul Niwas, House No. 91, Isanpura, Vairat Nagar, Ahmedabad (Gujrat state). 5. Rajaniben Rameshlal Sugandhi, R/o. Vallhab Kunj, Indira Nagar, Burhanpur, Tq. Burhanpur, District Khandwa (M.P. ....Respondents. Shri. R.M. Deshmukh, Advocate for the petitioner. Shri. C.R. Deshpande, Advocate for the respondent No. 1. 2 CORAM : B.R. GAVAI, J. DATE : 18th JUNE, 2009 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Head both the counsel. 2. By way of present petition, the petitioner challenges the order dated 30th of April 2009 passed by the District Judge-1, Amalner in Misc. Application No. 1/2009, thereby refusing to take on board the application for condonation of delay filed by the present petitioner. 3. The final decree for partition has been passed in the suit filed by the respondent No. 1 and the learned Executing Court vide the order dated 4th of April 2009 has appointed the Court Commissioner for executing the decree. 4. In the meantime, the present petitioner has filed an appeal, challenging the decree. Along with the said appeal application for condonation of delay is also filed. According to the petitioner, there is delay of 26 days in filing the appeal. The petitioner has also preferred an application under section 41 (L) (5) (i) of the Civil Procedure Code for stay to the execution of decree. 5. Since the Court Commissioner was appointed and since the 3 executing Court has directed to complete the work of commission on or before 15 of June 2009, the present petitioner filed an application for taking the matter on board before the learned District Judge. However, the said application is rejected. Hence, the present petition. 6. Shri. Deshpande, learned counsel appearing on behalf of the respondent No. 1 submits that the appeal filed by the present petitioner itself is not tenable and therefore, no prejudice has been caused to the petitioner by impugned order. 7. However, in the interest of justice, I find that it would be appropriate that the learned Distirct Judge-1, Amelner decides the application filed by the present petitioner for condonation of delay in filing the appeal and application under section 41 (L) (5) (i) and till then the execution proceedings are stayed. It is also reported that the appeal and application for condonation of delay in filing in appeal is fixed on 25th of June 2009. 8. In that view of the matter, I am inclined to dispose of this petition with following order. The learned District Judge-1, Amalner is directed to decide the application filed by the present petitioner for condonation of delay in filing an appeal on 25th of June 2009 after hearing both the parties. The 4 petitioner as well as the respondent No. 1 undertake to remain present before the Court on the said date. It is made clear that all objections of the respondent No. 1 relating to tenability of the appeal are kept open. It is further directed that the execution proceedings shall not proceed further till the orders are passed by the learned District Judge-1, Amalner on the application filed by the petitioner. Rule is made absolute in aforesaid terms. Names of respondent Nos. 2 to 5 are directed to be deleted from the array. Authenticated copy be supplied to the parties to act upon. [ B.R. GAVAI, J. ] ssc/wp3050.09