1 / 6 5-saz 358-26 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 358 OF 2026 M/s Nagpur Samay Media Pvt.Ltd. And anr. Vs. Shloka Infotech through its. Proprietor Mr.Praful S.Dhole ---------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ---------------------------------------------------------------------------------------------- Ms. H.D.Jamgade, counsel for the appellants. Mr. D.P.Bhongade, counsel for the respondent. CORAM : MRS. VRUSHALI V. JOSHI, J. DATE : 28/09/2026 1. Heard. 2 The learned caveator has waived notice on behalf of the respondent and has advanced submissions in the matter, as the respondent has already been duly served. 3. The appellants are the original defendants. The suit was instituted by the plaintiff for recovery of the amount due, and the same came to be decreed ex-parte. Thereafter, the appellants preferred an appeal after a delay of 271 days. The appeal was accompanied by an application seeking condonation of the said delay. 4. The reason assigned by the learned counsel fore the appellants in the application for condonation of delay was that she was not aware of the proceedings. According to Kavita 2026:BHC-NAG:13285 2 / 6 5-saz 358-26 the appellants, notice of the suit was not served upon them and, therefore, they had no knowledge of the proceedings or the decree passed therein. It is stated that upon coming to know about the decree, the appellants immediately preferred the appeal along with the application for condonation of delay. 5. It was further contended that the delay was neither intentional nor deliberate, but had occurred solely on account of the appellants lack of knowledge regarding the proceedings. On these grounds, the appellants prayed that the delay of 271 days in filing the appeal be condoned. 6. The Appellate Court, after considering the evidence on record and the submissions advanced by the parties, rejected the application for condonation of delay. Aggrieved by the said order, the appellants have preferred the present appeal. 7. The respondent, who has appeared through the caveator, has opposed the appeal and contended that the appellants were duly served. An opportunity was afforded to the appellants by the appellate court to lead evidence in support of the application for condonation of delay. The appellate court has observed that the appellant Mukesh had denied the signature appearing on the bailiff's report. However, the bailiff was not examined by the appellants in support of their contention. It has further been observed that the signature appearing on the bailiff's report, upon Kavita 3 / 6 5-saz 358-26 comparison with the admitted signature, was found to be similar by the trial court. 8. The appellants failed to establish, by leading cogent and reliable evidence, that the signature appearing on the bailiff's report was not his signature. Consequently, the appellants failed to establish that they had no knowledge of the proceedings or that there was sufficient cause for the delay of 271 days in preferring the appeal. 9. In these circumstances, the appellate court was justified in rejecting the application for condonation of delay. The impugned order, therefore, does not call for interference. 10. The respondent has also raised an objection that, instead of preferring an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree passed by the trial court, the appellants have directly preferred an appeal against the said decree. The appellants, however, has relied upon the explanation furnished in the application for condonation of delay and has contended that the appeal preferred by them is maintainable. 11. The respondent has further raised an objection as to the maintainability of the present second appeal, contending that a second appeal does not lie against an order rejecting an application for condonation of delay. 12. In support of the maintainability of the present appeal, the appellants have placed reliance upon the Kavita 4 / 6 5-saz 358-26 judgment of the Orissa High Court in Fakira Mishra v. Biswanath Mishra & Ors., reported in 2015 SCC OnLine Ori 313. In the said decision, the Orissa High Court has observed that where an application for condonation of delay is rejected, such rejection amounts to a decree within the meaning of Section 2(2) of the Code of Civil Procedure and, consequently, a second appeal is maintainable. 13. Upon considering the observations made by the trial court, as well as the evidence led by the appellants in support of their contention that they were not aware of the proceedings before the trial court, it appears that the appellants came to know about the decree through an acquaintance and, thereafter, took steps to challenge the same. The appellants have consistently contended that they were not served with the notice of the proceedings and has specifically denied the signature appearing on the bailiff's report. It is also noticed that the name appearing in the said report is different. 14. It is true that the signatures appearing on different documents relied upon by the parties are not identical and appear to have been made differently. However, merely because the appellant Mukesh has signed differently on different documents, the same by itself would not be sufficient to conclusively establish that the signature appearing on the bailiff's report is that of the appellant- Kavita 5 / 6 5-saz 358-26 Mukesh, particularly when he has specifically denied the same and the bailiff has not been examined. 15. Having regard to the overall facts and circumstances of the case, the possibility that the appellants were not aware of the proceedings cannot be completely ruled out. The conduct of the appellants also assumes significance. The appellants have deposited an amount of Rs.50,000/- before the executing court and has expressed their readiness and willingness to deposit the entire decretal amount before the appellate court. This conduct indicates that the delay was not deliberate or intentional. 16. It is also relevant to consider the question of law arising in the present appeal. Though the appellants have not specifically formulated a substantial question of law in the memorandum of appeal, the learned counsel for the appellants has contended that the following substantial question of law arises for consideration: “Whether the appellate court has adopted a hyper-technical approach while rejecting the application for condonation of delay?” 17. Considering the nature of the dispute, the explanation furnished by the appellants for the delay, the fact that the appellants have denied service and the signature appearing on the bailiff's report, the non- examination of the bailiff, and the conduct of the appellants Kavita 6 / 6 5-saz 358-26 in depositing Rs.50,000/- before the executing court and expressing willingness to deposit the entire decretal amount, the matter requires consideration on its merits rather than being shut out on the ground of delay alone. 18. I have heard learned counsel for both the parties. Considering the observations made and the reasons stated by the appellants, I am of the view that an opportunity ought to be afforded to the appellants to contest the matter before the Appellate Court. Accordingly, the delay in filing the appeal is condoned. 19. The Appellate Court is directed to admit the appeal and hear the same on merits, after affording an opportunity of hearing to the concerned parties. 20. In view of the above, the appeal is allowed and disposed of accordingly. JUDGE Kavita Signed by: Kavita P Tayade Designation: PS To Honourable Judge Date: 06/10/2026 18:05:14