1 W.P.No.3234/09 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.3234 OF 2009. Sow.Kalindabai W/o Baburao Raut, Age 30 years, Occ.Household, R/o Gopewadi, Tq. Paithan, Dist. Aurangabad. through her G.P.A. Holder Suman W/o Dagdoba Gaware, Age 35 years, Occ.Househld, R/o Charthana, Tq. Jintoor, Dist. Parbhani. ... Petitioner. Versus 1. Vaijinathappa S/o Bhujangappa Tamshete, Age 80 years, Occ. Agri. & Business, R/o Charthana, Tq.Jintoor, Dist. Parbhani. 2. Sow. Kondabai W/o Baburao Gaware, Age 70 years, Occ.Househld, R/o Charthana, Tq.Jintoor, Dist.Parbhani. 3. Dagdu S/o Baburao Gaware, Aged 45 years, Occ.Agri., R/o as above. 4. Haribhau S/o Baburao Gaware, Age 43 years, Occ.and R/o as above. 5. Narayan S/o Baburao Gaware, Age 39 years, Occ.and R/o 2 W.P.No.3234/09 as above. 6. Sow. Bhagirathibai W/o Swarup Waghmare, Age 37 years, Occ.and R/o as above. ... Respondents. (Respondent No.6 deleted as per order dt.27.7.2011 and 4.8.2011). ... Mr.P.N.Kalani, advocate for the petitioner. Mr.A.N.Kakade, advocate for the Respondent No.1. Mr.P.K.Lakhotiya, advocate for Respondent No.3. Respondent No.6 deleted. ... CORAM : S.V.GANGAPURWALA,J. Date : 17.08.2011. ORAL JUDGMENT : 1. Heard. 2. Rule. Rule returnable forthwith. With the consent of the parties, the petition is taken up for final hearing. 3. The present Respondent No.1 had filed Special Civil Suit No.44/1994 for recovery of possession. The present petitioner was not party 3 W.P.No.3234/09 to the said suit. The trial Court decreed the said suit. Thereafter, the Respondent No.1 preferred execution proceedings. On getting the knowledge of the said execution proceedings and the decree being passed, the present petitioner filed appeal before the District Judge, Parbhani, along with an application for leave to file appeal. The said application is rejected by the District Judge. Aggrieved thereby, the present Writ Petition is filed. 4. Mr.Kalani, learned counsel for the petitioner submits that the District Court has not considered the merits of the matter and only on the ground that the petitioner was not party to the suit has rejected the application for leave to file appeal. According to the learned counsel, even if a person is not a party to the suit and if he has interest in the subject matter and the decree that is passed then he is entitled to prefer appeal with the leave of the Court. For the said purpose, the learned counsel relies on the judgment of the Apex Court in a case of "Ganga Bai Vs. Vijay Kumar" reported in 1974 AIR 4 W.P.No.3234/09 (SC) 1126. 5. Mr.Kakade, learned counsel for the Respondent No.1 submits that as the petitioner was not the party, he did not have any right to file appeal. The District Court has rightly rejected the application. 6. With the assistance of the learned counsel, I have perused the order. The District Judge has rejected the said application by passing four line order and only on the premise that the petitioner was not a party in the original proceedings, no leave can be granted. It has not considered the merits of the application nor has given any finding as to whether the petitioner has an interest in the subject matter or not and whether the petitioner would be affected by the decree that would be passed. 7. The Apex Court in a case of "Ganga Bai Vs. Vijay Kumar" referred supra has held that a person who is not a party to the suit can also 5 W.P.No.3234/09 file appeal after seeking leave of the Court. 8. In light of the above, the impugned order is quashed and set aside. The District Court shall consider the application of the petitioner seeking leave to file appeal in Rejected Appeal No.02/2009 afresh on its own merits after giving opportunity to all the parties. 9. Rule made absolute accordingly. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/wp323409 6 W.P.No.3234/09