Bombay High Court

MIRABAI TRYMBAK PATILversusGUNWANTRAO CHAITNYARAO PATIL AND OTHERS

Disposal: APPLICATION ALLOWED

Holding

The court held that the delay was not deliberate and therefore condoned, and that the substantive question of redemption versus possession requires further adjudication.

Summary

The applicant filed Civil Application No. 8655 seeking condonation of a 112‑day delay in filing a second appeal against a decree for possession of a mortgaged property. The court examined the reasons for the delay and found them neither deliberate nor intentional, granting condonation in the interest of justice. The second appeal raised a substantive question of law whether a decree for possession could be valid when the plaintiff had sought redemption of the mortgage under Order XLI of the Code of Civil Procedure, 1908. The court issued notice to the respondents and set a return date of 30 October 2026 for further hearing. In a related Civil Application No. 8657, the court granted ad‑interim relief as prayed for in clause ‘B’ pending the return date.

Issues considered

Whether the trial court and appellate court were justified in passing a decree for possession when the plaintiff sought redemption of the mortgage under Order XLI of the CPC, 1908
Whether a delay of 112 days in filing a second appeal can be condoned

Legislation cited

Code of Civil Procedure, 1908 — s. Order XLI

Subjects

condonation of delay
second appeal
redemption of mortgage
decree for possession
interim relief
Order XLI CPC

Judgment

                                               983 CA NO. 8655 OF 2026.odt


       IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                  BENCH AT AURANGABAD
           983 CIVIL APPLICATION NO. 8655 OF 2026
                     IN SAST/16527/2026

                      Mirabai Trymbak Patil
                            VERSUS
            Gunwantrao Chaitnyarao Patil And Others
                                ...
Mr. Bhaktraj Laxmanrao Patil and Ms. Pawar Archana Jitendra,
Advocates for Applicant
                              WITH
  CIVIL APPLICATION NO. 8657 OF 2026 IN SAST/16527/2026
                               ….

                   CORAM : SANJAY A. DESHMUKH, J.
                       DATE : 30.09.2026
PER COURT :-

CIVIL APPLICATION NO. 8655 OF 2026

1.          Heard learned Advocate for the Applicant.

2.          This is an application for condonation of delay of 112

days caused in filing the Second Appeal.

3.          Perused the application.       For the reasons stated

therein, the application deserves to be allowed in the interest of

justice as the delay is neither deliberate nor intentional. Hence,

the following order:

                            ::ORDER::

a.        Civil Application is allowed.
b.        The delay of 112 days caused in filing the Second
          Appeal is condoned.

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                                      (( 2 ))       983 CA NO. 8655 OF 2026


SECOND APPEAL

1.             Heard learned Advocate for the Appellant.

2.             Considering the reasons stated in the impugned judgment

and the judgment of the learned Trial Court, as well as the

submissions of the learned Advocate for the Appellant, the following

substantial question of law arises for consideration:

              a. Whether the learned Trial Court and the learned

Appellate Court were legally justified in passing a decree for

possession of the suit property when the Plaintiff had sought

redemption of the mortgage under Order XLI of the Code of Civil

Procedure, 1908?

3.            Issue notice to the Respondents, returnable on 30.10.2026.

4.            Call Record and Proceedings.

CIVIL APPLICATION NO. 8657 OF 2026

1.            Heard learned Advocate for the Applicants.


2.            Issue notice to the Respondents, returnable on 30.10.2026.


3.            Considering the facts and circumstances of the case, till the

returnable date, there shall be an ad-interim relief in terms of prayer

clause ‘B’.


                                        [ SANJAY A. DESHMUKH, J. ]
HRJadhav


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