This court dismissed two writ petitions challenging the District Judge's order allowing condonation of delay for filing appeals. The judge found the Trial Court's discretion was properly exercised and the appeals had fructified.
The writ petitions were dismissed with no order on the stay extension.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4711 of 2012
Jairam Murlidhar Gawali : Petitioner versus
Dnyaneshwar Sadashiv Gawali & Anr.
: Respondents
WITH
WRIT PETITION NO.4714 OF 2012
Jairam Murlidhar Gawali : Petitioner versus Prabhakar Dhondiram Bhusare & Ors. : Respondents
: Respondents
Mr. Ulhas Naik with Mr. Amit Karande for the Petitioner in both the Petitions
CORAM:- R M SAVANT, J DATED :- 17th OCTOBER, 2012.
P.C.
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
Appeals against the Judgment and Decree dated 27-8-2010 in Regular Civil
Suit No.302 of 2007 and Regular Civil Suit No.303 of 2007, came to be
condoned.
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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.
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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(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.
(R M SAVANT, J)
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2 issues framed by the court
Whether the High Court should interfere with the Trial Court's discretionary order allowing condonation of delay in filing appeals.
Whether an extended stay of execution of the decree requires judicial intervention in the writ petitions.
2 provisions across 2 enactments
Jairam Murlidhar Gawali
Dnyaneshwar Sadashiv Gawali
Prabhakar Dhondiram Bhusare
R M Savant
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
