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Bombay High Court

SHIRINBAI HASANALI PAPERWALA (DELETED) THR LRS AND ORSversusUTRON HAMZA KADAM AND ORS

Decided
Disposal
Disposed Off

Holding

The appellate court’s order disposing of the Marji application is set aside, while the condonation of delay is upheld.

Summary

The petitioners challenged an appellate order that, after condoning the delay in filing Marji Application No. 210 of 2022, also automatically restored the suit and directed the trial court to dispose of the application. The petitioners relied on the Supreme Court’s decision in C. Prabhakar Rao v. Sama Mahipal Reddy, which held that a court may condone delay but cannot itself dispose of the pending application. The High Court examined the precedent and found that the appellate court had erred by combining condonation with disposal of the Marji application. Accordingly, the Court affirmed the condonation of delay but set aside the portion of the order that disposed of the application. The trial court is now directed to hear Marji Application No. 210 of 2022 on its merits under Order IX Rule 13 of the CPC. The writ petition was consequently disposed of.

Issues considered

  • Whether an appellate court can both condone delay in filing a Marji application and simultaneously dispose of the application.
  • Whether the order disposing of the Marji application is permissible under law.
  • Whether the trial court must decide the Marji application on its merits after condonation of delay.

Legislation cited

Subjects

  • delay condonation
  • Marji application
  • ex-parte decree
  • revision jurisdiction
  • CPC Order IX Rule 13
  • Article 136
  • Supreme Court precedent

Judgment

                                                                     27 WP 12126 OF 2026.DOC




                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION

                                      WRIT PETITION NO. 12126 OF 2026

                      Shirinbai Hasanali Paperwala
                      Since deceased through the LRs.                         … Petitioners
                      1(a) Mrs. Masooma Shabbir Tinwala And Ors.
                                Versus
                      Utron Hamza Kadam and Ors                             …. Respondents




                      Mr. Pradeep Thorat a/w. Ms. Aditi Naikare, Advocate for the
                      Petitioners.
                      Mr. Utttam M. Parmar, Advocate for the Respondents.


                                            CORAM:        ARUN R. PEDNEKER, J.

                                            DATED:        24th SEPTEMBER, 2026.

                      PC:-

                      1.      The learned counsel for the Petitioner has particularly drawn

                      my attention to the impugned order at pages 106 and 107. The

                      learned counsel for the Petitioner has also shown me the order

                      passed by the trial Court, wherein it is clearly observed that the

                      trial Court was considering a delay condonation application filed in

                      Marji Application No. 210 of 2022. The trial Court dismissed the

RAJESHRI              delay condonation application, and accordingly, Marji Application
PRAKASH
AHER
Digitally signed by
RAJESHRI PRAKASH
                      No. 210 of 2022 stood automatically dismissed.
AHER
Date: 2026.09.30
12:13:52 +0530




                                                     Page 1 of 4

                      Rajeshri Aher
                                                27 WP 12126 OF 2026.DOC




2.      The learned counsel for the Petitioner has relied upon the

judgment of the Supreme Court in the case of C. Prabhakar Rao

and Anr. v. Sama Mahipal Reddy and Anr. 1, and submitted that the

Appellate Court in the Appeal filed by the Respondent, having

condoned the delay in filing the Marji Application, at the best

could have restored Marji Application No. 210 of 2022 for hearing

on merits. The order of the Appellate Court disposing of the Marji

Application itself is not permissible in law.


3.      I have considered the submissions. Having perused the

reason given in the case, the order condoning the delay is not

interfered with. However, the second part of the order of the

Appellate Court disposing of the Marji Application is set aside. The

Marji Application would stand restored, and the trial Court will

have to decide the Marji Application on its own merits.


4.      The Supreme Court, in the case of C. Prabhakar Rao

(Supra), particularly observed in paragraphs 14 to 17 that the High

Court, while exercising powers of revision in the facts of that case,

could have only condoned the delay in filing the application for

setting aside the ex-parte decree, and could not have disposed of

1       (2025) 9 SCC 716



                               Page 2 of 4

Rajeshri Aher
                                                      27 WP 12126 OF 2026.DOC




the Application under Order IX Rule 13. The relevant paragraphs

in the case of of C. Prabhakar Rao (Supra) read thus:


     “14.       To start with, facts and events relating to passing of an ex
     parte decree are distinct from the facts and events relating to the
     delayed filing of the application for setting aside of the ex parte
     decree. Secondly, the procedure for setting aside the ex parte decree
     will again be distinct from the procedure for condoning the delayed
     filing of the application to set aside the ex parte decree. Thirdly, the
     adjudication and determination of a court with respect to setting
     aside the ex parte decree are independent of the adjudication with
     respect to condoning the delay. Finally, the remedies against these
     orders are independent and one remedy would not subsume the
     other. They must be adopted and pursued independently. This much
     clarity is sufficiently borne by our practice and procedure of law. The
     order passed by the High Court setting aside the ex parte decree
     when no revision is filed against the said order of the trial court in IA
     No. 1163 of 2021 cannot be sustained.

     15….

     16….

     17.        The High Court exercised its revisional jurisdiction and
     came to the conclusion that the delay in filing the application in
     setting aside the ex parte decree should be condoned. We are not
     inclined to interfere with this order in exercise of our power under
     Article 136 of the Constitution. However, the later portion of the
     abovereferred order is unsustainable as the High Court proceeded to
     automatically restore the suit and directed the trial court to dispose
     of the suit expeditiously.”




                                   Page 3 of 4

Rajeshri Aher
                                                  27 WP 12126 OF 2026.DOC




5.      The Supreme Court has in the case of C. Prabhakar Rao

(Supra), has observed that the High Court, while exercising

revisional jurisdiction, came to the conclusion that the delay in

filing the Application for setting aside the ex-parte decree should

be condoned, and the Supreme Court was not inclined to interfere

with this order in exercise of its powers under Article 136 of the

Constitution of India. However, the Supreme Court observed that

the later portion of the High Court's order is unsustainable, as it

had proceeded automatically to restore the suit and directed the

trial Court to dispose of the suit expeditiously.


6.      In the instant case, this Court finds that the Appellate Court

has done exactly the same.


7.      In that view of the matter, the delay in filing Marji

Application No. 210 of 2022 stands condoned. The trial Court

would now decide Marji Application No. 210 of 2022 under Order

IX Rule 13 independently and in accordance with law.


8.      The Writ Petition is disposed of accordingly.




                                             (ARUN R. PEDNEKER, J.)



                               Page 4 of 4

Rajeshri Aher


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