1 ca4165.08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 4165 OF 2008 IN SECOND APPEAL ST. NO. 18375 OF 2007 Balu s/o Mahadu Bale, Age: 37 years, Occ: Agri., R/o. Rampurwadi, Tq. Kannad, Dist. Aurangabad. ...APPLICANT VERSUS Saluba s/o Chingaji Bale, Age: 58 yeas, Occ: Agri., R/o. Rampurwadi, Tq. Kannad, Dist. Aurangabad. ...RESPONDENT ... Mr. V.B. Garud, Advocate for applicant. Mr. L.D. Vakil (Gangapurkar), Advocate for respondent sole. ... CORAM: S.S. SHINDE, J. DATE : 20TH DECEMBER, 2011 PER COURT : . Heard learned Counsel for the applicant and learned Counsel for the respondent. 2. Learned Counsel for the applicant invited 2 ca4165.08 my attention to the contents of the application and also additional affidavit filed by the applicant and submitted that, till 20-09-2007 there was no communication in respect of the judgment and order in R.C.A. No. 230 of 2004 and as a result, he could not file second appeal immediately. It is further submitted that, the applicant met his Advocate at Aurangabad on 20-09-2007. During the course of discussion, Advocate informed him that Mr. Kashinath Madhavrao Janjal who is acquainted with the applicant was told to convey the message to the applicant about the dismissal of R.C.A. No. 230 of 2004. However, said message was not communicated by the said Kashinath to the applicant. Therefore, the learned Counsel submits that, the application for condonation of delay may be allowed. 3. Learned Counsel for the applicant would submit that, till 20-09-2007 the applicant was not aware about the dismissal of R.C.A. No.230 of 2004 and immediately thereafter, the second appeal is 3 ca4165.08 filed on 03-10-2007. 4. Learned Counsel for the respondent would submit that, the delay caused in filing the second appeal is intentional since the applicant wish to deprive the respondent from enjoying the fruits of the decree which is passed in his favour. There is calculated attempt on the part of the applicant to deprive the respondent and therefore, the application for condonation of delay may be rejected. He further submits that, the applicant is taking stand before the Executing Court that, his second appeal is pending and as a result, the said proceedings pending before the Executing Court be stayed. 5. I have given due consideration to the rival submissions. From the perusal of the averments in the application and also additional affidavit, the applicant's case that the Advocate informed him first time on 20-09-2007 is required to be accepted. On 03-10-2007 second appeal is 4 ca4165.08 filed. I find substance in the contention of the Counsel for the respondent that, attempt of the applicant appears to be to prolong the proceedings of second appeal so as to get advantage of it in the execution proceedings. However, it cannot be forgotten that, the right of appeal of a party is valuable right and said cannot be easily taken away on technical grounds. Therefore, in the facts and circumstances of this case, delay deserves to be condoned, however, the respondent is also required to be compensated. 6. In the result, Civil Application is allowed subject to costs of Rs.10,000/- (Rs. Ten thousand only) to be deposited by the applicant in this Court on or before 10-01-2012. Payment of costs is a precondition. Upon depositing such costs, the respondent will be entitled to withdraw the same without any condition or without formal application. In case, the applicant fails to deposit the costs of Rs.10,000/- on or before 10-01-2012, the order passed by this Court today 5 ca4165.08 will not take effect and resultantly, the application for condonation of delay will be treated as rejected. 7. List the second appeal for further hearing on 12-01-2012. [S.S. SHINDE, J.] sut/DEC11