Dismissed

1. Smt. Halima Abdul Mulla. v. 1. Salim Gulab Pathan

Bombay HC10 Apr 2024IA/7527/2024

Case brief

AI extract

What is this about?

This judgment rejects an interim application seeking condonation of excessive delay of over four years in filing a Second Appeal regarding a partition decree. The court held that age and poverty alone do not justify the delay, noting the applicants had previously filed a regular appeal in 2015 and failed to monitor the First Appellate Court's decree. The Second Appeal is consequently rejected for

What did the court decide?

Interim application for condonation of delay rejected; Second Appeal rejected for want of merit due to time bar.

1. Smt. Halima Abdul Mulla. Vs 1. Salim Gulab Pathan — Property and Title | Bombay HC (2024)

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15 ia 7527.24 in sal as.doc
k 1/3

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

¶3

INTERIM APPLICATION NO.7527 OF 2024
IN
SECOND APPEAL (STAMP) NO.7311 OF 2024
WITH
SECOND APPEAL (STAMP) NO.7311 OF 2024

¶4

Halima Abdul Mulla & Anr.
V/S
Salim Gulab Pathan & Ors.

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....Appellants/Applicants

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....Respondents

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Mr. Dheeraj Patil for the Appellanst/Applicants.

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CORAM: SANDEEP V. MARNE, J. DATE : 10 APRIL 2024.

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P.C.:

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1The Interim Application is filed for seeking condonation of delay of 4
years and 337 days in filing the Second Appeal.

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2 The Second Appeal is filed challenging the decree passed by the First Appellate Court on 23 November 2018.

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3 The only reason pleaded by the Applicants in the Application is that Applicant No.1 is a senior citizen and a poor agriculturist. It is pleaded that the Advocate of the Appellants did not inform them about the decree passed

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katkam Page No. 1 of 3

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15 ia 7527.24 in sal as.doc
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by the First Appellate Court. That they learnt about the decree only when the
same was sought to be executed. The Appellants therefore contacted another
advocate in December 2023 and this is how the Appeal is lodged alongwith
Application for condonation of delay, after securing certified copy of the
impugned decree.

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4The delay in filing the Appeal is inordinate. The Appeal is sought to be
filed after delay of almost five long years. The decree passed by the Trial
Court grants share to the original Plaintiffs in the joint family property. The
Appellants unsuccessfully tested the decree of the Trial Court before the First
Appellate Court by filing Regular Civil Appeal No.36 of 2015. This would
show that the Appellants were vigilant enough to challenge the decree of the
Trial Court dated 23 January 2015 by filing the First Appeal in the year 2015
itself. However after the Appeal was dismissed by the First Appellate Court
on 23 November 2018, the Appellants went into deep slumber and did not
take any steps for challenging the decree of the First Appellate Court by filing
Second Appeal before this Court within a reasonable time. The explanation of
advance age of Appellant No.1 and poor financial background are general in
nature and these circumstances are not sufficient for condoning inordinate
delay of 4 years and 337 days in filing the Second Appeal. The Applicants
cannot be permitted to blame their advocate when the responsibility of
keeping the tag on the Appeal filed by the First Appellate Court equally rested
on the shoulders of the Appellants. The Appeal was lodged by them before
the First Appellate Court on 25 February 2015 i.e. immediately after passing

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katkam Page No. 2 of 3

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15 ia 7527.24 in sal as.doc
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of the decree by the Trial Court on 23 January 2015. It is impossible to believe
that the Applicants were unaware about the decree passed by the First
Appellate Court on 23 November 2018 for a period of five long years. It was
the responsibility of the Appellants to acquire knowledge about progress of
the Appeal filed by them.

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5After going through the reasons pleaded in the Application, I am of the
view that no case is made out for condonation of inordinate delay of 4 years
and 337 days in filing the Appeal. Interim Application filed by the Applicants
is therefore rejected.

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6With rejection of the Interim Application for condonation of delay,
nothing would survive in the Second Appeal which also stands rejected.

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(SANDEEP V. MARNE, J.)

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Digitally signed by SUDARSHAN SUDARSHAN RAJALINGAM RAJALINGAM KATKAM KATKAM Date: 2024.04.12 20:41:32 +0530

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Page No. 3 of 3

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katkam

1. Smt. Halima Abdul Mulla. v. 1. Salim Gulab Pathan

Case brief

What is this about?

What did the court decide?

1. Smt. Halima Abdul Mulla. v. 1. Salim Gulab Pathan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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