(42)-WP-5542-22.doc.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.5542 OF 2022

Mr. Madhukar Shripati Kamale

..Petitioner

Versus

Mr. Vijay Sudhakar Ronghe

..Respondent

Mr. Harshad Sathe i/by Sachin B. Chandan, for the Petitioner.

Mr. Purushottam G. Chavan, for the Respondent.

Petitioner in person present.

CORAM : NITIN W. SAMBRE, J.

DATE : 4^th MAY, 2022

P.C.

1.

This petition is directed against the order impugned

dated 6^th October, 2021 passed by the learned District Judge,

wherein prayer for condonation of delay of 425 days caused in

moving application for restoration of Civil Appeal No.390 of 2017

came to be rejected.

2.

The aforesaid appeal was dismissed for want of

prosecution on 23^rd October, 2019. The said appeal is directed

against the judgment and decree dated 29^th April, 2017 passed

against the petitioner/defendant whereby the suit claim for setting

aside sale-deed dated 10^th May, 2012 with an agreement to sale

dated 6^th February, 2012 came to be allowed. The said documents

were ordered to be set aside and the respondent/plaintiff is

BGP.

1 of 3

BALAJI

GOVINDRAO

PANCHAL

Digitally

signed by

BALAJI

GOVINDRAO

PANCHAL

Date:

2022.05.10

10:45:02

+0530

(42)-WP-5542-22.doc.

permitted to deposit an amount of Rs.7,10,000/- towards balance

consideration of the suit property so as to get the sale-deed of the

suit property executed in his favour.

3.

I have heard respective counsels.

4.

The cause cited by the petitioner in support of the

condonation of delay is ailment of his brother Mahipati who died of

lever failure. Though the said fact could be inferred from the

record, however, the period spent in pursuing the health issue of

brother Mahipati is not sufficient to infer that there was bonafide

cause which has resulted in delayed filing of application for

restoration.

5.

Rather the counsel for respondent was justified in

claiming that the very conduct of the petitioner in prosecuting an

appeal and execution proceedings depicts that he was well aware of

the dismissal of appeal.

6.

In response to the Court’ query, counsel for the

petitioner on instructions volunteers that an amount of

Rs.1,00,000/- towards cost shall be deposited in the Trial Court

within a period of six weeks from today.

7.

Statement made since is on instructions of the petitioner,

same is accepted as an undertaking to this Court. Subject to deposit

BGP.

2 of 3

(42)-WP-5542-22.doc.

of aforesaid cost, order impugned dated 6^th October, 2021 is set

aside in view of consent extended by the counsel for the respondent.

Respondent/decree holder is permitted to withdraw the cost

amount, if so deposited.

8.

A further statement on the part of the petitioner that

along with cost he shall be filing his written notes of argument in an

appeal and shall not seek further adjournments is also accepted as

an undertaking. In case, if the aforesaid undertakings are not

complied by the petitioner in its true letter and spirit, the Appellate

Court shall pass consequential order of non-compliance of the

present order and accordingly, the Court below is permitted to

proceed ahead with the execution of the decree. In case, if the

order is complied with, hearing of the appeal be concluded

expeditiously and in any case within a period of two weeks

thereafter.

9.

The petition stands allowed in above terms.

10.

Parties hereto agree that they shall be appearing before

the lower Appellate Court on 16^th June, 2022, the date on which the

petitioner shall be depositing cost and his written notes of

arguments so as to conclude final hearing of the matter.

[NITIN W. SAMBRE, J.]

BGP.

3 of 3