Bombay High Court
KEVALBAI JAGANNATH PAWARversusSHANKAR RAGHO BACHHAV
- Decided
- Disposal
- Disposed Off
Holding
The Court held that the 610‑day delay was not condonable as no justifiable cause was pleaded, and therefore the appeal was dismissed.
Summary
The appellants, who were defendants in a civil suit, faced an ex‑parte decree on 12 June 2013 and later appeared in execution proceedings on 13 July 2013. They filed an appeal on 5 February 2015, 610 days after the decree, seeking condonation of the delay under Order XXI Rule 32(5) of the CPC. The district judge rejected the condonation, finding no justifiable reason; the appellants’ claim of cancer was deemed irrelevant as they had recovered earlier. On appeal, the High Court affirmed the lower court’s view, noting the absence of a written statement, the existence of a registered sale deed in the plaintiff’s favour, and the lack of any substantive legal question. Consequently, the second appeal and all related civil applications were dismissed.
Issues considered
- Whether a delay of 610 days in filing an appeal against an ex‑parte decree can be condoned under Order XXI Rule 32(5) of the Code of Civil Procedure, 1908.
- Whether the appellant’s alleged illness constitutes a sufficient ground for condonation of such delay.
- Whether the appeal should be entertained despite the absence of a written statement and the presence of a registered sale deed favouring the plaintiff.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order XXI Rule 32(5)
Subjects
- condonation of delay
- ex‑parte decree
- Code of Civil Procedure
- appeal
- civil procedure
- injunction
- sale deed
- execution proceedings
Judgment
2026:BHC-AS:36124
k 1/4 23 sa 719.17 as.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.719 OF 2017
Kevalbai Jagannath Pawar & Ors. ....Appellants
V/S
Shankar Ragho Bachhav & Anr. ....Respondents
WITH
CIVIL APPLICATION NO.1420 OF 2017
IN
SECOND APPEAL NO.719 OF 2017
Kevalbai Jagannath Pawar & Ors. ....Applicants
V/S
Shankar Ragho Bachhav & Anr. ....Respondents
WITH
CIVIL APPLICATION (STAMP) NO.29674 OF 2016
IN
SECOND APPEAL NO.719 OF 2017
Jagannath Dhodha Pawar ....Applicant
V/S
Shankar Ragho Bachhav & Anr. ....Respondents
WITH
INTERIM APPLICATION NO.144 OF 2025
IN
SECOND APPEAL NO.719 OF 2017
Kevalbai Jagannath Pawar & Ors. ....Applicants
V/S
Shankar Ragho Bachhav & Anr. ....Respondents
_________
Mr. Vikas B. Mourya i/b Mr. Mahendra N. Sandhyanshiv for the
Appellants/Applicants.
katkam Page No. 1 of 4
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Mr. Pratik Sabrad i/b Mr. Suresh M. Sabrad with Ms. Neha Parte for
Respondents.
__________
CORAM : SANDEEP V. MARNE, J.
DATE : 1 SEPTEMBER 2026.
P.C.:
1. The Second Appeal challenges order dated 28 June 2016 passed by
the District Judge, Malegaon, rejecting Civil Miscellaneous Appeal No.14
of 2015 filed for the purpose of condonation of delay of 610 days in filing
the Appeal against ex-parte decree dated 12 June 2013.
2. I have heard Mr. Mourya, the learned counsel appearing for
Appellants and Mr. Sabrad, the learned counsel appearing for
Respondent No.1.
3. Appellants are Defendants in Regular Civil Suit No.206 of 2012
filed by the Plaintiff for seeking declaration of ownership and injunction
against the Defendants. Despite being duly served Defendants failed to
appear in the Suit. The Suit proceeded ex-parte. The Trial Court went
through registered Sale Deed executed in favour of the Plaintiff in
pursuance of execution of a decree passed in Special Civil Suit No.95 of
2006. After being satisfied that Plaintiff is the owner of the suit property
the Trial Court also issued consequential injunction in favour of the
Plaintiff restraining the Defendants from causing any obstruction to
Plaintiff using the suit land.
4. It appears that Defendants acquired knowledge of the execution
proceedings and appeared therein on 13 July 2013 and filed Application
katkam Page No. 2 of 4
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under Order XXI Rule 32(5) of the Code of Civil Procedure, 1908 (the
Code). Thus, Defendants participated in the execution proceedings and
attempted to obstruct execution of the decree. However, they did not
take contemporaneous steps for challenging the decree of the Trial Court
by filing the Appeal. The Appeal was filed on 5 February 2015 after delay
of 610 days. More importantly Defendants did not plead any justifiable
reasons for condonation of such inordinate delay. The plea of Defendant
No.1 suffering from cancer is found to be inconsequential since it has
come in evidence that she had recovered in the year 2011 itself. The
Appellate Court has rightly held that no justifiable cause is pleaded or
demonstrated by the Defendants for condonation of delay. Even
otherwise, no practical purpose would be served in permitting the
Appellants to prosecute the Appeal on merits in view of the fact that
there is no Written Statement filed by them in the Suit and Plaintiff is
armed with a registered Sale Deed executed in his name. In any case, if
the Appellants were serious enough in challenging the decree of the
Trial Court, they ought to have contemporaneously filed the Appeal after
appearing in execution proceedings on 13 July 2013. If the ailment and
other reason did not come in the way of Defendants in appearing and
defending the execution proceedings, it is incomprehensible as to how
the said difficulties can selectively come in the way of filing of Appeal.
The Application for condonation of delay is rightly rejected by the
Appellate Court. No substantial question of law is involved and there is
no interference warranted in the order passed by the learned District
Judge. The Second Appeal is accordingly dismissed.
katkam Page No. 3 of 4
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5. In view of the disposal of the Second Appeal, nothing would
survive in the Civil Applications and Interim Application and the same
are accordingly disposed of.
(SANDEEP V. MARNE, J.)
katkam
Signed by: Sudarshan R. Katkam Page No. 4 of 4
Designation: PS To Honourable Judge
Date: 03/09/2026 11:38:21
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