1 17. CAS 765.26.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CIVIL APPLICATION NO.765 OF 2026 IN SECOND APPEAL ST. NO.8971 OF 2026 Shakir A. Ukani Vs. Lata W. Awari and ors. Office Notes, Office Memoranda of Court's or Judge's Order Coram, appearances, Court's Orders or directions and Registrar's order Mr. Abhishekh Tripathi a/w. Ms. Ayushi Dangre, Advocates for applicant/appellant. Mr. A. M. Chandekar, Advocate for non-applicants/respondents. CORAM : MRS. VRUSHALI V. JOSHI, J. DATE : 23.09.2026. . The applicant - appellant has filed this application for condonation of delay of 350 days caused in filing the Second Appeal. 2. The appellant is original defendant No.1 and is the purchaser of the property. The suit was filed by the wife of defendant No.2, who had sold the property to defendant No.1. The suit was for cancellation of the sale deed. The suit was dismissed by the learned Trial Court. The plaintiffs preferred an appeal. The appeal was proceeded ex-parte and the learned Appellate Court has reversed the judgment passed by the learned Trial Court. 3. The appellant was not aware of the judgment passed by the learned Appellate Court as the appeal was proceeded ex-parte. According to the appellant, he was not served in the said appeal. The appellant came to know about the judgment of the learned Appellate Court 2 17. CAS 765.26.odt on 04.02.2026, when he received the notice in the mutation proceedings. Thereafter, he applied for a certified copy and, subsequently, filed the present Second Appeal. Accordingly, there is a delay of 350 days in filing the Second Appeal. 4. Learned counsel for the respondents opposed the application and submitted that, as the order was passed ex-parte, the appellant had a remedy under Order XLI, Rule 21 of the Code of Civil Procedure, 1908 (for short, “the CPC”) and, therefore, he could not have directly file the Second Appeal. The respondents have also filed on record the bailiff’s report and has stated that the applicant has approached this Court on a false ground that he was not served. The respondents have relied upon the bailiff’s report to contend that the appellant was duly served. It is submitted that if the appellant disputes the bailiff’s report, the appropriate remedy is to seek an enquiry in that regard and, therefore, the remedy under Order XLI, Rule 21 of the CPC is available to the appellant and not the remedy of filing a Second Appeal. It is, therefore, submitted that the reason given by the appellant for condonation of delay is not correct, as he was duly served. Hence, learned counsel for the respondents prayed for rejection of the application. 5. Heard learned counsel appearing for the respective parties. 3 17. CAS 765.26.odt 6. The appellant has relied upon the judgment passed by this Court in the case of Ramesh Jagannath Ingole Vs. Shakunabai Ganesh Ingole, reported in 2015(4) Mh.L.J. 787, wherein this Court has observed as under:- “As regards second substantial question of law, the learned counsel for the appellant by relying upon the ratio of the judgment of the Supreme Court in Bhanu Kumar Jain (supra) sought to draw a similar analogy on the basis of observations made in para 26 of said judgment. He submitted that even if recourse to provisions of Order 41, Rule 21 of the Code had been taken, the same would not preclude the appellant from filing the second appeal. There appears to be the substance in said submission. While the respondent in an appeal that has been heard in his absence can seek rehearing under the provisions of Order 41 Rule 21 of the Code, there is no bar to challenge the said decree under the provisions of section 100 of the Code. Precedent for said view can be found in Sadaram Marar vs. Dular Marar, AIR 1917 Nagpur 26, wherein it was held that the remedy under provisions of Order 41, Rule 21 can be invoked simultaneously to filing an appeal under section 100 of the Code.” 7. As observed in the said judgment, though the remedy of under Order XLI, Rule 21 of the CPC is available, the remedy of filing a Second Appeal is not precluded. 4 17. CAS 765.26.odt 8. The appellant has denied the signature on the bailiffs’ report. The order passed by the learned Appellate Court was ex-parte. The appellant has stated that he was not aware of the proceedings before the learned Appellate Court. 9. Considering the reasons given in the application, the application is allowed. Delay of 350 days caused in filing the Second Appeal is hereby condoned, subject to payment of costs of Rs.10,000/- in the following account:- Account Name : Public Welfare Account Account No. : 129112010001014 Bank Name : Union Bank of India, Branch Name : High Court, Civil Lines, Nagpur IFSC Code : UBIN0812978. 10. Cost be deposited before 23.10.2026. 11. Registry is directed to register the appeal. SECOND APPEAL ST. NO.8971 OF 2026. 12. Issue notice to the respondents, returnable after four weeks for admission, on the following proposed substantial questions of law:- “I. Whether the judgment and decree passed by the First Appellate Court is vitiated in law for having been passed ex parte without affording reasonable and adequate opportunity of hearing to the Appellant, in violation of the principles of natural justice? 5 17. CAS 765.26.odt II. Whether the First Appellate Court has committed a substantial error of law in reversing the well-reasoned findings of the Trial Court without independently appreciating the oral and documentary evidence on record and erred in law in setting aside the Trial Court's findings without recording cogent reasons, as mandated for reversal of findings of facts? III. Whether the First Appellate Court has committed a substantial error of law in invalidating the sale transaction by ignoring the Defendant's status as a bona fide purchaser for value without notice and by misinterpreting the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, including the requirement and effect of statutory permissions?” 13. Mr. Chandekar, learned Advocate, waives service of notice on behalf of the respondents (MRS. VRUSHALI V. JOSHI, J.) T αɳɱαყ...