Bombay High Court

SHANKAR SHAMRAO MANE THR POA SAHEBRAO HANMANT MANEversusPOPAT BALU LOKHANDE AND ORS

Disposal: Disposed Off
Bench: NITIN B SURYAWANSHI

Holding

The High Court held that the petitioner's service of summons was improper and the delay was sufficiently explained, warranting condonation of the delay and quashing of the order rejecting the application.

Summary

The petitioner, Shankar Shamrao Mane, filed a writ petition under Article 227 challenging the order of the Extra Joint District Judge that rejected his application for condonation of a 2‑year‑1‑month‑4‑day delay in filing an appeal against an ex‑parte decree. The original suit, filed by the plaintiff, sought a declaration of ownership of a parcel of land and was decreed ex‑parte after the petitioner failed to appear, despite service of summons on his daughter‑in‑law, which the petitioner argued was improper. The petitioner sought relief to have the delay condoned so that he could appeal the decree, while the respondents contended that the summons was valid and the delay unexplained. The High Court examined the adequacy of service, the need for a fair opportunity to contest the suit, and the principle of liberal condonation of delay under Section 5 of the Limitation Act. Finding that the service was improper and the delay was reasonably explained, the Court allowed the writ petition, quashed the order rejecting the condonation, and imposed costs on the petitioner.

Issues considered

Whether the service of summons on the petitioner's daughter‑in‑law amounted to proper service under the Civil Procedure Code.
Whether the delay of 2 years, 1 month and 4 days in filing an appeal against an ex‑parte decree can be condoned under Section 5 of the Limitation Act.
Whether the writ petition under Article 227 of the Constitution is maintainable to set aside the order rejecting the condonation application.

Legislation cited

Constitution of India — s. Article 227
Limitation Act — s. 5

Subjects

condonation of delay
ex‑parte decree
service of summons
Article 227
Limitation Act
Civil Procedure
appeal against decree

Judgment

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60-WP-9335-2023 (C).DOC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 9335 OF 2023

Shankar Shamrao Mane
Through POA Sahebrao Hanmant Mane ...Petitioner
Versus
Popat Balu Lokhande And Ors. ...Respondents

Digitally
signed by
Mr. Dilip Bodake a/w Ms. Sujata B. Lohar, Mr. Viraj P. Dhumal, Mr.
SAJAKALI
SAJAKALI LIYAKAT
LIYAKAT JAMADAR
JAMADAR Date:
2026.02.10
Amar P. Dhumal, Advocate For Petitioner.
17:25:07
+0530

Mr. Suryajeet P. Chavan, Advocate For Respondents.

CORAM : NITIN B. SURYAWANSHI, J.
DATE : 2nd FEBRUARY, 2026

P.C.

1. This Petition filed under Article 227 of the Constitution of

India, takes exception to the order dated 04.10.2022 passed in Civil

Misc. Application No.13 of 2020 by the learned Extra Joint District

Judge, Vaduj, thereby rejecting the application filed by the Petitioner

seeking condonation of delay of 2 years, 1 month and 4 days.

2. Respondent No.1/Original Plaintiff filed R.C.S. No.188 of

2004 before the Court of learned Civil Judge Junior Division, Vaduj

against the Petitioner and Respondent Nos.2 & 3/Original Defendants

Nos.2 & 3 for declaration that the suit property bearing Gat No.1626

admeasuring 0-17 R. situated at Mouje Kurle Rajache, Taluka:Khatav

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is owned by him and the Defendants be restrained from interfering in

peaceful possession of the suit property.

The Petitioner on receipt of summons, appeared in the suit.

However, subsequently he and other defendants failed to appear. On

09.08.2005, the trial Court passed order that the suit to proceed ex-

parte against the Defendants. On 02.05.2008, the suit was decreed

ex-parte. On coming to know about the said ex-parte decree, the

Petitioner filed Regular Misc. Application No.19 of 2008 seeking

condonation of delay of two years, one month and four days in

preferring appeal against the ex-parte judgment and decree.

The said application was opposed on merit by Respondent

No.1/Original Plaintiff contending that the summons was duly served

on the Petitioner and he intentionally remained absent. The appellate

Court rejected the application. Hence, the Petition.

3. Heard learned Advocate for the Petitioner and learned

Advocate for Respondents. Perused the record.

4. Learned Advocate for the Respondents has strenuously

opposed the Petition stating that the delay is not properly explained.

The summons was properly served on the Petitioner in the Suit and

therefore, there is no merit in the contention that summons was not

served on him and an ex parte decree is passed against him. He

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therefore submits that the petition is not maintainable, hence, it may

be dismissed.

5. In support of his submissions, he relied on the Judgment in

the case case of Ainthu Charan Parida V/s. Sitaram Jayanarayan

Firm1, in which the full Bench of the Orissa High Court has held that

the order rejecting a memorandum of appeal or dismissing an appeal

following the rejection of an application under Section 5 of the

Limitation Act for condonation of delay in preferring an appeal is not

a decree. The said decision is rendered in different facts and covers

different points and has no application to the facts of the present

case.

6. Record indicates that the suit summons was served on the

daughter-law of the Petitioner, hence the same cannot be said to be

proper service. Valuable rights of the Petitioner in respect of the

immovable property are involved in the present matter. Therefore,

fair opportunity to contest the suit on merits is required to be given to

the Petitioner. This Court is of the view that delay is properly

explained and the appellate Court ought to have taken liberal view by

condoning the delay.

7. For aforestated reasons, Writ Petition is allowed.

1 1984 AIR (Ori) 230

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8. The impugned order dated 04.10.2022 passed in Civil Misc.

Application No.13 of 2020 by learned Extra Joint District Judge,

Vaduj is hereby quashed and set aside on condition that the Petitioner

shall pay cost of Rs.10,000/- to Respondent No.1/Original Plaintiff in

the Appellate Court within four weeks from the date of receipt of this

order.

9. All contentions on merit of the respective parties are kept

open.

(NITIN B. SURYAWANSHI, J.)

Sajakali Jamadar

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