Dismissed

Shri. Jairam Murlidhar Gawali v. Shri. Dnyaneshwar Sadashiv Gawali and Ors.

Bombay HC17 Oct 2012WP/4711/2012

Case brief

AI extract

What is this about?

The Single Judge of the Bombay High Court dismissed two writ petitions challenging an order condoning delay in filing appeals due to non-service of summons. The court held that as the appeals were filed and remained pending, there was no warrant to interfere with the Trial Court's discretion.

What did the court decide?

Writ petitions dismissed; no interference with impugned orders on condonation of delay or extension of stay.

Shri. Jairam Murlidhar Gawali Vs Shri… — Civil Procedure and Limitation | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4711 of 2012

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Jairam Murlidhar Gawali : Petitioner versus

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Dnyaneshwar Sadashiv Gawali & Anr.

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: Respondents

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WITH

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WRIT PETITION NO.4714 OF 2012

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Jairam Murlidhar Gawali : Petitioner versus Prabhakar Dhondiram Bhusare & Ors. : Respondents

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: Respondents

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Mr. Ulhas Naik with Mr. Amit Karande for the Petitioner in both the Petitions

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CORAM:- R M SAVANT, J DATED :- 17^th OCTOBER, 2012.

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P.C.

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1 In the above Petitions the Writ Jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 9-4-2012 passed by the Learned District Judge-6, Nashik by which order,

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the Misc Applications Nos.44 of 2012 and 45 of 2012 came to be allowed and resultantly the delay of 1 year 6 months and 4 days caused in filing the

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Appeals against the Judgment and Decree dated 27-8-2010 in Regular Civil

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Suit No.302 of 2007 and Regular Civil Suit No.303 of 2007, came to be

condoned.

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MMJ

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2 By the said orders, the stay of execution of decree passed by the Trial Court was extended by four weeks from the date of the Order and the Appeals in question were directed to be disposed of expeditiously. The reasons mentioned by the Respondents seeking condonation of delay in filing the Appeals has been found worthy of acceptance by the Trial Court. The reason was that the summons were not served upon the Defendants in accordance with Order 5 Rule 17 of the Civil Procedure Code. The Trial Court has recorded a finding to that effect in paragraphs 9 and 10 of the impugned order. The Trial Court was also of the view that it would be better if the dispute between the parties is adjudicated on merits rather than the parties being thrown on technicalities. As indicated above, the reasons mentioned by the Respondents for the said delay of 1 year 6 months and 4 days were accepted by the Trial Court.

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3 The Learned Counsel appearing for the Petitioner in both the Petitions Mr. Naik stated that pursuant to the impugned orders the Appeals have been numbered. In my view, considering the reasons mentioned in the impugned order as also considering the fact that the Appeals have fructified after the impugned orders were passed, there is now no warrant to interfere with the discretion exercised by the Trial Court in so far as the aspect of condonation of delay is concerned.

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MMJ

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4 The Learned Counsel for the Petitioner states that though by clause

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(3) of the impugned orders the stay of the decree was extended by a period of four weeks, the said stay has not been extended nor any Application has been filed by the Respondents herein i.e. the Appellants for extension of stay. The Learned Counsel would contend that the Petitioners who have a decree in their favour in both the Suits have already filed Darkhast proceedings. If there is no stay operating pending the Appeals, it would be for the Petitioners to draw the attention of the Executing Court to the said fact.

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5 No interference is therefore called for with the impugned orders, in both the Petitions. The Writ Petitions are accordingly dismissed.

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(R M SAVANT, J)

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MMJ

Shri. Jairam Murlidhar Gawali v. Shri. Dnyaneshwar Sadashiv Gawali and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Jairam Murlidhar Gawali v. Shri. Dnyaneshwar Sadashiv Gawali and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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Coram

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