-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.3064 of 2005 Shri Shaikh Mohammed Aftab ..Petitioner vs. 1. Bank of Baroda and ors. ..Respondents Shri S.G.Kudle for petitioner. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 29th January, 2008 29th January, 2008 29th January, 2008 P.C. P.C. P.C. 1. Heard Shri Kudle appearing for the petitioner/original applicant. None appears for the respondents although office report shows that they have been served. 2. The petitioner filed an appeal against the decree passed by the Trial Court. The appeal was filed in the court of District Judge at Alibag. The petitioner points out that respondent no.1/original plaintiff filed a suit and that Special Civil Suit no.24 of 1975 was filed against respondent nos. 2 and 3. The amount that was claimed by the Bank under the mortgage has been set out in para 2 of the petition. A preliminary decree was passed on 15th December, 1976 and final decree was passed -2- on 6th March, 1978. However, that decree could not gain finality as the first respondent Bank came to know that the petitioner has interest in the property. In such circumstances, the petitioner was impleaded as a party and final decree was passed on 16th March, 1990. The final decree was modified on 30th October, 1993. The petitioner initially filed an appeal on 1st December, 1994 before the District Court, Raigad. There was an objection raised on 3rd December, 1994 about maintainability of the appeal in the District Court. The order was passed on 3rd July, 1996 returning the appeal for presentation to the proper Court. Accordingly, the petitioner preferred the first appeal to challenge the decrees passed against him in this Court but it came to the notice of the petitioner that Bombay Civil Court Act, 1869 was amended and that is how the first appeals before this Court were also not maintainable. The petitioner, therefore, requested this Court to remit the appeal as also application for condonation of delay to the District Court. 3. The District Court refused to condone the delay by the impugned order and that is how the subject writ petition. -3- 4. In my view, it is only an improper legal advice or lack of knowledge about the maintainability of the proceeding that led to the petitioner moving the District Court earlier and thereafter this Court and back to the District Court. He has satisfactorily explained the delay that has occurred on account of the above events. This is not a case where the petitioner can be held guilty of inaction, negligence nor it can be said that the application lacks bonafides. In such circumstances, the delay deserves to be condoned and should have been condoned. The learned District Judge has failed to apply his mind to the above events and apply the principles that are to be applied while considering such applications. Sufficient cause has been shown to condone the delay. In such circumstances, the order under challenge cannot be sustained and it is accordingly quashed and set aside. The application preferred by the petitioner being Civil Misc.Application no.30 of 2001 is allowed accordingly. The Appeal should now be numbered and dealt with on merits and in accordance with law. Petition is disposed of as above. -4- (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)