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
- Code of Civil Procedure, 1908 — s. Order IX Rule 13
- Constitution of India — s. Article 136
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
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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
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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.”
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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.)
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