1 60-WP-9335-2023 (C).DOC IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIRCUIT BENCH AT KOLHAPUR CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9335 OF 2023 Shankar Shamrao Mane Through POA Sahebrao Hanmant Mane ...Petitioner Versus Popat Balu Lokhande And Ors. ...Respondents Mr. Dilip Bodake a/w Ms. Sujata B. Lohar, Mr. Viraj P. Dhumal, Mr. Amar P. Dhumal, Advocate For Petitioner. Mr. Suryajeet P. Chavan, Advocate For Respondents. CORAM : NITIN B. SURYAWANSHI, J. DATE : 2nd FEBRUARY, 2026 P.C. 1. This Petition filed under Article 227 of the Constitution of India, takes exception to the order dated 04.10.2022 passed in Civil Misc. Application No.13 of 2020 by the learned Extra Joint District Judge, Vaduj, thereby rejecting the application filed by the Petitioner seeking condonation of delay of 2 years, 1 month and 4 days. 2. Respondent No.1/Original Plaintiff filed R.C.S. No.188 of 2004 before the Court of learned Civil Judge Junior Division, Vaduj against the Petitioner and Respondent Nos.2 & 3/Original Defendants Nos.2 & 3 for declaration that the suit property bearing Gat No.1626 admeasuring 0-17 R. situated at Mouje Kurle Rajache, Taluka:Khatav Sajakali Jamadar SAJAKALI LIYAKAT JAMADAR Digitally signed by SAJAKALI LIYAKAT JAMADAR Date: 2026.02.10 17:25:07 +0530 2 60-WP-9335-2023 (C).DOC is owned by him and the Defendants be restrained from interfering in peaceful possession of the suit property. The Petitioner on receipt of summons, appeared in the suit. However, subsequently he and other defendants failed to appear. On 09.08.2005, the trial Court passed order that the suit to proceed ex- parte against the Defendants. On 02.05.2008, the suit was decreed ex-parte. On coming to know about the said ex-parte decree, the Petitioner filed Regular Misc. Application No.19 of 2008 seeking condonation of delay of two years, one month and four days in preferring appeal against the ex-parte judgment and decree. The said application was opposed on merit by Respondent No.1/Original Plaintiff contending that the summons was duly served on the Petitioner and he intentionally remained absent. The appellate Court rejected the application. Hence, the Petition. 3. Heard learned Advocate for the Petitioner and learned Advocate for Respondents. Perused the record. 4. Learned Advocate for the Respondents has strenuously opposed the Petition stating that the delay is not properly explained. The summons was properly served on the Petitioner in the Suit and therefore, there is no merit in the contention that summons was not served on him and an ex parte decree is passed against him. He Sajakali Jamadar 3 60-WP-9335-2023 (C).DOC therefore submits that the petition is not maintainable, hence, it may be dismissed. 5. In support of his submissions, he relied on the Judgment in the case case of Ainthu Charan Parida V/s. Sitaram Jayanarayan Firm1, in which the full Bench of the Orissa High Court has held that the order rejecting a memorandum of appeal or dismissing an appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring an appeal is not a decree. The said decision is rendered in different facts and covers different points and has no application to the facts of the present case. 6. Record indicates that the suit summons was served on the daughter-law of the Petitioner, hence the same cannot be said to be proper service. Valuable rights of the Petitioner in respect of the immovable property are involved in the present matter. Therefore, fair opportunity to contest the suit on merits is required to be given to the Petitioner. This Court is of the view that delay is properly explained and the appellate Court ought to have taken liberal view by condoning the delay. 7. For aforestated reasons, Writ Petition is allowed. 1 1984 AIR (Ori) 230 Sajakali Jamadar 4 60-WP-9335-2023 (C).DOC 8. The impugned order dated 04.10.2022 passed in Civil Misc. Application No.13 of 2020 by learned Extra Joint District Judge, Vaduj is hereby quashed and set aside on condition that the Petitioner shall pay cost of Rs.10,000/- to Respondent No.1/Original Plaintiff in the Appellate Court within four weeks from the date of receipt of this order. 9. All contentions on merit of the respective parties are kept open. (NITIN B. SURYAWANSHI, J.) Sajakali Jamadar