1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5917 OF 1999 1 Veena Mahendra Maniyar 2 Deepak Mahendra Maniyar ...Petitioners vs. Suresh Harilal Janaani ...Respondent Mr.I.M.Vohra i/b Mr.Bipin Joshi for the petitioners Ms Anita Castelino i/b M/s.B.amin and Co. for the respondent CORAM :A.S.OKA,J. DATE : APRIL 28, 2010 JUDGMENT : 1 Heard the learned counsel for the parties. The petitioners are the defendants and the respondents are the plaintiffs. The challenge in this writ petition is to a order passed by the Appeal Bench of the Court of Small Causes by which the delay in preferring an appeal has been condoned. 2 In the suit filed by the respondents, consent terms were tendered and the Court purported to pass a consent decree. An appeal has been preferred against the decree which has been allegedly passed by the consent of the parties. There was a delay in preferring the said appeal. The delay has been condoned. 3 The submission of the learned counsel for the petitioners is that the appeal itself is not maintainable in view of sub section 3 of section 96 of the Code of Civil Procedure,1908 in as much as there is clear bar created by sub section 3 of section 96 against an 2 preferring appeal against the decree passed by the consent the parties. He submitted that as the appeal itself was barred by the express provisions of the said Code, there was no question of condoning the delay. He submitted that in any case there was no sufficient cause for condonation of delay as the respondents were aware at all material times about the consent decree. He placed reliance on the decision of the Apex Court in case of Katikara Chintamani Dora and others Vs. Guatreddi Annamanaidu and others (AIR 1974 SC 1069). The learned counsel for the respondent placed reliance on the decision of the Apex Court in case of Banwari Lal Vs.Chando Devi (through L.R.) and another (AIR 1993 SC 1139). She also placed reliance on the decision of this Court in case of Deorao Patilbuwa Raut vs. Devkinandan Bhojraj Chandak (1984 Mh.L.J. 430). The learned counsel for the respondent submitted that in view of what is held by the Apex Court and this Court, considering the grounds taken in the Memorandum of appeal, the same was maintainable. 4 I have given careful consideration to the submissions. I have perused the application for condonation of delay. Alleged decree has been passed on 17th July 1997 in terms of the consent terms dated 16th July 1997. In the application for condonation of delay, reliance has been placed on various grounds set out in the memorandum of appeal. A contention has been raised in the memorandum of appeal that the alleged consent is vitiated by fraud and as a matter of fact there is no consent. Appeal along with delay condonation of application was filed on 23rd October 1997. Application for certified copy was made on 21st October 1997. There was a sufficient cause made out for condonation of delay of 67 days in view of averments made in the application 3 for condonation of delay. 5 The contention raised in the memorandum of appeal is that the compromise was vitiated by fraud. Looking to the averments made in the application for condonation of delay, sufficient cause was made out as in the matter of condonation of delay under section 5 of the Limitation Act,1963, the Court has to adopt a liberal and justice oriented approach. 6 As far as issue of maintainability is concerned, the parties have relied upon various decisions. In the case of Katikara Chintamani (supra) the Apex Court held that if there is contest on the question whether there is a compromise or not, the decree accepting the compromise cannot be said to be a decree passed with the consent of the parties. Reliance has been placed on the observations of the Apex Court in case of Banwari Lal (supra) and especially in paragraph 13 thereof. The decision of this Court in case of Deorao Patilbuwa Raut (supra) holds that sub section 3 of section 96 of the said Code debarred only those appeals where the appellant does not dispute recording of compromise. There is another decision of the larger bench of the Apex Court in case of Katikara Chintamani (supra) which considers rule 3 of Order XXIII as well as sub section 3 of section 96 of the said Code and by applying the principles of estoppal, it is held that bar under section 3 of section 96 is attracted. It is true that the issue of maintainability of the appeal will have to be dealt with. Considering the law laid down by the aforesaid decisions, the perusal of the record of the suit will be necessary for determining the issue of maintainability of the appeal. The said exercise will have to be done by the Appellate Court. 4 7 Though order of condonation of delay is being confirmed by this Court, the issue of maintainability of the appeal will have to be considered by the Appellate court at an appropriate stage. It will be unjust to the parties if in this writ petition arising out of an order condoning delay, the said said issue is decided by this Court especially when the record of the trial Court is not before this Court. 8 Hence, I pass the following order : i) Petition is rejected. Rule is discharged. ii)It is made clear that the issue of maintainability of the appeal in the light of sub section 3 of section 96 of the said Code is expressly kept open. The Appellate Court shall decide the said issue. JUDGE