JEEVAN MADHAVJI SUTAR Vs. HIRAJI NATHU KUKADIYA

JUDGEMENT

(1.) The matter is not on board for final hearing. However, by consent of both the parties, it is taken up for final hearing.

(2.) In this petition, the petitioner challenges the order dated 17th September 1997 passed by the learned 6th Additional District Judge Pune in Miscellaneous Application No.145 of 1997. That application was filed by the petitioner for condonation of delay in filing the appeal against the final decree passed in R.C.S. No.452 of 1982. The delay was of 328 days. The Court refused to condone the delay as the Court was not satisfied with the explanation given by the petitioner for the delay. Several reasons were given by Petitioner why he could not approach the appellate Court earlier. Really speaking no fault could be found with the order of the appellate Court refusing to condone the delay. However, the petitioner has pursuant to the order of ad interim relief dated 17th October, 1997 passed by this Court, deposited Rs.3 lacs in the trial Court. In my opinion, considering stakes involved in the litigation and that the petitioner has deposited an amount of Rs.3 lacs in the trial Court which the respondent can be permitted to withdraw, the interest of justice, would be subserved by condoning the delay in filing the appeal. So far as the recovery of the balance amount of the decree is concerned, the petitioner would have to make an application for the stay of the execution before the appellate Court and it is for the appellate Court to make appropriate orders on that application on its own merits and in accordance with law. The learned Counsel for the respondent has no objection to condone the delay in these facts and circumstances. In this view of the matter, therefore, petition succeeds and is allowed. Rule made absolute in terms of prayer clause (b). The trial Court shall permit the respondent to withdraw the amount of Rs.3 lacs. deposited with the trial court pursuant to ad interim order passed in this petition dated 17th October, 1997 on his furnishing security to the satisfaction of the trial Court. Rule made absolute with no order as to costs.