Sou. Radhika Sanjay Salukhe v. Dada Vitthal Salunkhe And ORS.

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IN THE HIGH COURT OF JUDICATURE AT MUMBAI

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9194 OF 2014 Radhika Sanjay Salunkhe ...

Petitioner Vs.

Dada Vitthal Salunkhe and another ...

Respondents Mr. Sachin Gite for Petitioner.

CORAM : R. G. KETKAR, J.

DATE : 6TH JULY, 2015 P.C. :

Not on Board. At the request of Mr. Gite, learned Counsel for petitioner, taken up in the production Board. 2.

By this Petition under Article 227 of the Constitution of India, petitioner-original defendant No.2 has challenged the judgment and order dated 10.04.2014 passed by the learned Ad-hoc District Judge-2, Satara below exhibit-1 in Miscellaneous Application No.177 of 2012. By that order, the learned District Judge rejected the application. 3.

In view the decision of the Apex Court in the case of Shyam Sundar Sarma Vs. Pannalal Jaiswal, AIR 2005 SC 226, and in paragraph 10 thereof, Petition under Article 227 is not maintainable. The Apex Court has observed in paragraph 10 as under:- "10.

The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi v. Mathew (1987) (2) KLT 848. Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes and an order dismissing the appeal was a decree that could be the subject of a second appeal. It was also held that Rule 3A of Order XLI introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal registered under Rule 9 of Order XLI of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its 1/2

WP9194_14.sxw presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal." (emphasis supplied) 4.

In view thereof, Writ Petition is not maintainable and the petitioner will have to file substantive Second Appeal challenging the impugned order. Reserving liberty to the petitioner to challenge the impugned order by filing Second Appeal, Petition is disposed of. Registry shall return certified copies, if any, filed by the petitioner. (R. G. KETKAR, J.) Minal Parab 2/2