1 wp-7023.10.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7023 OF 2010 Sou. Suman Shamrao Patil : Petitioner versus Gangubai Kashinath Naikawadi and ors. : Respondents. Mr. S M Railkar for the Petitioner. Mr. Prashant P Jadhav for Respondent Nos.13 and 14. CORAM : R M SAVANT, J. DATE : 22nd December 2011 P.C. 1 Rule, with the consent of the parties made returnable forthwith and heard. 2 The above Petition takes exception to the order dated 09/08/2010 passed by the learned District Judge­1, Islampur by which order the Civil Misc. Application No.77 of 2009 filed by the Petitioner for condonation of delay in filing the Appeal came to be rejected. 3 Shorn of unnecessary details, a few facts can be stated thus :­ The Petitioner herein was one of the Defendants in the suit filed by the Respondent Nos.1 to 5 herein bearing Regular Civil Suit No.542 of 2010 (original numbered as Special Civil Suit NO.546 of 2004). The said suit was filed for partition and possession. The Petitioner herein is the heir original Defendant No.10 Bhagirathibai Daulu Patil. The said suit was decreed by the 2 wp-7023.10.sxw judgment and order date 9/8/2007. It appears that the said decree was put in execution by Regular Darkhast filed in the year 2009. The number of said Regular Darkhast is 209 of 2009. It is upon receipt of the notice of the said Regular Darkhast proceedings that the Petitioner filed an Appeal against the said decree dated 9/8/2007. Since the said Appeal was belated by 2 years and 4 months, the Petitioner filed an application for condonation of delay bearing Misc. Civil Application No.77 of 2007 which has been rejected by the impugned order. The ground set out by the Petitioner for seeking condonation of delay was that the Petitioner was suffering from jaundice and that talks of settlement were going on between the parties as they are closely related to each other. The said ground was not found acceptable by the First Appellate Court. The First Appellate Court observed that in so far as illness of the Petitioner is concerned, no evidence to that effect was produced, in so far as the case of talks of settlement were going on between the parties is concerned, the First Appellate Court observed that the evidence of the person before whom the said talks were going on was not adduced. 4 I have heard the learned counsel for the parties. 5 Though there has been delay of 2 years and 4 months in filing the Appeal, the case of the Petitioner that the talks of settlement were going on between the parties cannot be brushed aside considering the fact that the execution proceedings were filed in the year 2009 and the decree was passed 3 wp-7023.10.sxw in the year 2007. The said fact would itself be a pointer to the fact that some talks of settlement might have going on between the parties to resolve the dispute amicably as otherwise there was no reason for the Decree Holder to file the execution proceedings after a period of 2 years. The ground that the Petitioner was suffering from jaundice can be said to be an ancillary ground to the main ground of talks of settlement were going on. In my view, in the facts and circumstances of the case, the delay of 2 years and 4 months ought to be condoned as the same would result in the Petitioner be given an opportunity to prosecute the proceedings on merits. 6 It is trite that in matters of condonation of delay a highly technical approach should be eschewed and an approach which furthers the cause of justice should not be adopted. Since the Regular Darkhast proceedings are as yet pending, hence no prejudice would be caused to the Respondent Nos.13 and 14 herein who are the main opponents opposing the application for condonation of delay in the First Appellate Court. The said Respondents can be adequately compensated by costs. The above Petition is therefore allowed. The impugned order is quashed and set aside and resultantly, the delay of 2 years and 4 months would stand condoned. The First Appellate Court is directed to number the Appeal and hear the same on its own merits. In the facts and circumstances of the case, the interest of justice would be served if the Petitioner is directed to pay costs of Rs.5,000/­ to the Respondent Nos.13 and 14 jointly. The costs to be deposited in the First Appellate Court within 4 wp-7023.10.sxw four weeks from date. Rule is accordingly made absolute in the aforesaid terms. 7 Till such time as the parties appear before the First Appellate Court and the Application for interim relief, if any that would be filed in the said Appeal is considered by the First Appellate Court, the proceedings in the Regular Darkhast No.209 of 2009 would stand stay subject to the order that would be passed by the First Appellate Court in the said Appeal. If no such application pending the Appeal is filed within two weeks of the appearance of the parties before the First Appellate Court, the Decree Holder would be permitted to apply for recommencement of the Darkhast proceedings. 8 In the facts and circumstances of the case, the hearing of the Appeal is expedited. 9 All concerned parties to act upon an ordinary copy of this order duly authenticated by the Court Sheristedar. [R.M.SAVANT, J]