Bombay High Court
Smt. Sushila Wd/O Purushottam ... vs Shri Yadorao S/O Maruti Parate And ... on 29 September, 2021
Bench: S. M. Modak
22.sa.197.21 1/3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.197 of 2021
Smt. Sushila wd/o Purukshottam Parate & others
vs.
Shri Yadorao Maruti Parate & others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Shri R.D. Bhuibhar, Advocate for the Appellants.
CORAM : S.M. MODAK, J.
DATE : 29th SEPTEMBER, 2021.
Heard the learned Advocate for the appellants/original
defendants.
02] The suit filed by the present respondent No.1 Yadorao
for partition was decreed by the trial Court. These appellants
failed to file written statement. After accepting the case of the
plaintiff, the suit was decreed. When these appellants filed the
first appeal, there was a delay of 1791 days in filing the first
appeal. The first appellate Court, after hearing the parties, was
pleased to reject the delay condonation application as per the
order dated 09/03/2021. That is why, this second appeal is filed.
So, the only substantial question of law involved in this appeal is,
whether the first appellate Court was justified in refusing to
condone the delay.
03] Hence, issue notice to the respondents on the following
substantial questions of law, returnable after eight weeks.
i. Whether the first appellate Court erred in refusing to
condone the delay of 1791 days caused in filing the first
appeal?
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04] There are in all 15 respondents. Out of them,
respondent Nos.1 & 9 to 15 were the parties before the first
appellate Court. Whereas, respondent Nos.2 to 8 were not the
parties and they have been joined for the first time in this appeal
There is a separate application bearing Civil Application
No.612/2021 for joining them.
Civil Application [CAS] No.611/2021:
Heard.
02] Precept is already sent to the revenue authority as
ordered by the trial Court on 30/03/2010 in the judgment and
decree. When these appellants moved the first appellate Court
with delay condonation application, the proceedings were stayed.
In view of dismissal of delay condonation application, the revenue
authorities have proceeded to decide with the said precept.
03] The suit properties are situated at three places. It is
described in paragraphs 1 & 2 of the judgment. They are situated
at Mouza Khidki and Mouza Kodamendhi, Tahsil Mouda, District
Nagpur and at Mouza Pandhribodi, Tahsil Mohadi, District
Bhandara.
04] My attention is brought to the order dated 28/05/2015
passed by the Naib Tahasildar, Tahsil Mouda, District Nagpur. It is
marked as Annexure"X". He has suggested the distribution of the
land at Mouza Khidki as per the table mentioned in the order at
Page No.3. He has further directed to mutate the land, once the
measurement of land has been obtained from the Office of Land
Records.
05] In view of this, if the possession is handed over and if
the mutation is done, the purpose of filing of this appeal will be
frustrated. At this juncture, the Court is considering the prayer
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only in respect of the land situated at village Khidki, Tahsil Mouda,
District Nagpur. Hence, the following order is passed :
ORDER
I. The execution of the order passed by the 7th Joint Civil
Judge Senior Division, Nagpur in S.C.S. No.651/2003 is
stayed so far as the land situated at Mouza Khidki, Tahsil
Mouda, District Nagpur.
II. The concerned authorities are at liberty to carry out
measurements.
III.It is made clear that handing over possession as per that
measurement and mutation of those lands in the name of
the plaintiff is stayed until further orders.
IV. The prayer for the land at Kodamendhi, Tahsil Mouda,
District Nagpur and the land at Pandharibodi, Tahsil
Mohadi, District Bhandara will be considered, once the
appellants will produce necessary information.
Civil Application [CAS] No.612/2021:
Heard.
02] The names of respondent No.2 to 8, who are the legal
representatives of original defendant Nos.8 & 9, are remained to
be incorporated in the memo of the appeal They were not party
before the first appellate Court.
03] Issue notice to respondent Nos.2 to 8, returnable after
three weeks.
JUDGE
*sandesh
