Writ petition challenging District Court's order allowing condonation of delay for filing appeal against partition decree. Court held Article 227 does not warrant interference.
Writ petition dismissed; no order as to costs; impugned order of condonation of delay upheld; appeal to be decided expeditiously.
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.
1 wp 3292.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO. 3292 OF 2013
Leelabai Savalerao Wakchaure .. Petitioner
Versus
Ashok Savalerao Wakchaure and others .. Respondents
Shri S. D. Malwadkar, Advocate for the Petitioner. Shri V. Y. Bhide, Advocate for Respondent Nos. 1, 5a to 5c. Shri A. R. Gaikwad, Advocate for Respondent Nos. 3 and 4.
CORAM : S. V. GANGAPURWALA, J. DATE : 24TH APRIL, 2013.
PER COURT :
. An application filed by present respondent No. 1 for condonation of delay in filing appeal against judgment and decree passed by the Trial Court for partition and separate possession is allowed.
2 wp 3292.13
measurement has been carried out. The report is submitted and only actual physical possession is left to be delivered. At that stage the application for condonation of delay has been decided. According to the learned counsel, the provisions of Sec. 5 of the Limitation Act are not applicable in such proceedings. For the said purpose the learned counsel relies on the judgment of the Apex Court in a case of Damodaran Pillai Vs. South Indian Bank Ltd. reported in AIR 2005 SC 3460 . The learned counsel further contends that, even while passing the impugned order no reasons are given by the Court for condoning the delay. Without considering the sufficient cause the Court has condoned the delay which is improper.
3 wp 3292.13
condonation of delay in filing appeal against the judgment and decree passed by the Trial Court in a suit for partition and separate possession. The said appeal was not arising out of any order passed in execution proceedings. The judgment in a case of Damodaran Pillai Vs. The South Indian Bank referred supra relied by the learned counsel for the petitioner is in respect of a case where proceedings were filed against an order passed in execution proceedings. In the light of that, the Apex Court has observed that there is no express power to condone the delay. Sec. 5 of the Limitation Act is not applicable. The same is not the case here.
4 wp 3292.13
[ S. V. GANGAPURWALA, J. ]
bsb/April 13
3 issues framed by the court
Whether the writ court can interfere with the District Court's decision to condone delay in filing an appeal against a partition decree.
Whether Section 5 of the Limitation Act applies to applications for condonation of delay in appeals against judgment and decree.
Whether the District Court exercised its discretion in condoning the delay in a plausible manner.
1 provisions across 1 enactments
Leelabai Savalerao Wakchaure
Ashok Savalerao Wakchaure and others
S. V. GANGAPURWALA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
