Walter Murzello v. Alban Jacinto Murzello and Ors.

Bombay HC15 Jul 2025IA/9726/2024

Case brief

AI extract

What is this about?

Bombay High Court, Civil Appellate Jurisdiction — Interim Application No. 9726 of 2024 in First Appeal (ST) No. 15419 of 2024, Walter Murzello (Appellant/Applicant, Original Defendant No. 2) v. Alban Jacinto Murzello & Ors. — condonation of delay of about 5 years and 60 days in filing first appeal against decree dated 22/02/2019 (declaration and injunction, delivery of possession of suit property) — applicant learnt of decree only in February 2024 — respondents unrepresented despite service, no reply filed — delay condoned, application allowed — Coram: M. M. Sathaye, J. — dated 8 August 2025.

What did the court decide?

Delay of about 5 years and 60 days in filing First Appeal (ST) No. 15419 of 2024 condoned; Interim Application No. 9726 of 2024 allowed and disposed of. ¶¶29

Walter Murzello vs Alban Jacinto Murzello and Ors. — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Delay of about 5 years and 60 days in filing First Appeal (ST) No. 15419 of 2024 condoned; Interim Application No. 9726 of 2024 allowed and disposed of.

¶¶29

Issue for consideration

Whether sufficient cause is made out to condone the delay of about 5 years and 60 days in filing First Appeal (ST) No. 15419 of 2024 against the judgment and decree dated 22/02/2019.

¶¶15

Court's answer

The Applicant had engaged an advocate to oppose the suit on merits and had entered the witness box; it was apparent that he was contesting the suit, and the Court had to bear in mind that this is a substantive first appeal in the last fact-finding Court.

¶¶24

Ratio / Principle

The case was one of total lack of knowledge of the decree from its date until knowledge in February 2024 and filing of the Application in May 2024; the contesting Respondent neither appeared nor filed any reply, and the Applicant's asserted possession of the suit property was not controverted.

¶¶23

Key takeaways

Overall, sufficient cause is made out for condonation of the delay.ratio¶¶25
The Interim Application is allowed, the delay in filing the First Appeal is condoned, and the Interim Application is disposed of in those terms.ratio¶¶29

Detailed headnote1 paragraphs

Condonation of delay — Interim Application by Original Defendant No. 2 for condonation of delay of about 5 years and 60 days in filing First Appeal (ST) No. 15419 of 2024 against judgment and decree dated 22/02/2019, a decree of declaration and injunction directing the defendants to hand over possession of the suit property — Applicant had engaged an advocate and entered the witness box contesting the suit, but remained unaware of the judgment and decree from February 2019 till February 2024 — contesting Respondent (Plaintiff), served through newspaper publication, did not appear and filed no reply — Applicant's possession of the suit property not controverted — substantive first appeal in the last fact-finding Court — sufficient cause made out — delay condoned — Interim Application allowed and disposed of.

¶1

9.IA.9726.2024.doc

¶2

ANANT KRISHNA NAIK

¶3

Digitally signed by ANANT KRISHNA IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAIK CIVIL APPELLATE JURISDICTION Date: 2025.08.12 13:09:30 INTERIM APPLICATION NO. 9726 OF 2024. +0530 IN

¶4

FIRST APPEAL (ST) NO. 15419 OF 2024.

¶5

Walter Murzello Versus

¶6

...Appellant/Applicant.

¶7

Alban Jacinto Murzello & Ors. ...Respondents.

¶8

¶9

Mr. Deepak Shukla i/b. BNS Legal, for the Appellant/Applicant. None for the Respondents

¶10

¶11

CORAM : M. M. SATHAYE, J.

¶12

DATED : 8^th AUGUST 2025

¶13

P.C.:

¶14

This is an Application filed by the Original Defendant No. 2 for

¶15

condonation of delay in filing of the First Appeal. The impugned judgment and decree is dated 22/02/2019. According to office note there is a delay of about 5 years and 60 days in filing the Appeal.

¶16

Notices were issued and Respondent No. 3A is duly served. According to the office note other Respondents including the Respondent No. 2, who is contesting Respondent (being Plaintiff) is also served through newspaper publication. Nobody is appearing for the Respondents. No reply is filed opposing delay condonation.

¶17

It is stated by the Applicant that he had engaged an Advocate for

1/3

akn

9.IA.9726.2024.doc

opposing the Suit. It is further stated that the Applicant had entered witness box to give evidence contesting the Suit. It is stated that in the month of February 2024, Applicant learnt that decree is passed against him. It is categorically stated that all throughout from February 2019 till February 2024, Applicant was not aware of the impugned judgment and decree.

¶22

The impugned decree is a decree of declaration and injunction and Defendant including present Applicant were directed to hand over the possession of the suit property. It is submitted on instructions that the Applicant has not yet received any notice of execution of the decree.

¶23

Contesting Respondent is not appearing despite service and no reply is filed. It is asserted that the Applicant is in possession of the Suit property, which is also not controverted. It is a case of total lack of knowledge from the date of decree till knowledge in February 2024 and filing of Application in May 2024.

¶24

It must be noted that Applicant had not only engaged Advocate for opposing the prayers in the suit on merits, but had also entered witness box and therefore it is apparent that he was contesting the Suit. Therefore, the Court will have to bear in mind that this is a substantive first appeal in last fact-finding Court.

¶25