Ravindra Darshan Puri vs Matin Gafoor Momin

Rule. Rule made returnable forthwith and heard finally with the consent of the parties.

The petitioner is challenging the order dated 29.06.2026 passed below Exh.1 in Civil Misc. Application No.77 of 2026 only to the extent that, it directs the petitioner to deposit 50% of the alleged arrears of license fees as a condition for condonation of delay and maintained the order condoning the delay with a prayer to issue necessary orders for that purpose.

It is the case of the petitioner that, he is the original defendant in the suit filed by the respondent herein. The respondent instituted Special Civil Suit No.254 of 2023, in the Court of Civil Judge Senior Division, Ahmednagar for recovery of possession of suit premises and also for recovery of license fees. The suit filed by the respondent was decreed vide judgment and order dated 18.07.2025. The Trial Court held that, the respondent has proved his ownership and licensing over the suit property. The petitioner was the licensee and he was in arrears of license fees @ Rs.15,000/- per month from 13.01.2023 till the date of decree i.e. 18.07.2025. The petitioner was directed to hand over vacant possession of the suit property within one (1) month.

Pursuant to the decree passed in favour of the respondent, he had initiated execution proceedings by filing Special Darkhast No.93 of 2025, before the competent Executing Court at Ahmednagar. In the meanwhile, the petitioner has filed first appeal before the District Court, Ahmednagar against the order decreeing the suit of the respondent. However, there was a delay of 164 days in filing the appeal. Therefore, the appeal was accompanied with the Miscellaneous Application for condonation of delay. This application for condonation of delay has been decided vide order dated 29.06.2026 by the District Judge-1, Ahmednagar which is impugned in the present writ petition.

Learned advocate for the petitioner Mr. Shaikh Tarek Mobin submitted that, the delay occurred in filing the First Appeal before the District Court is neither intentional nor deliberate. Since the petitioner was suffering from serious ailment and was hospitalized from 20.07.2025 to 23.08.2025. He suffered physical incapacity as a result of his prolonged illness. As a result of which, he was unable to procure necessary documents for filing the First Appeal within the prescribed period of limitation. However, after sufficient recovery and obtaining necessary certified copies he has taken steps and filed the Appeal along with application for condonation of delay. The respondent appeared in the proceedings and filed reply below Exh.8 opposing the application on the ground that no sufficient cause has been made out. It is submitted that, by the impugned order dated 29.06.2026 the District Judge, Ahmednagar is pleased to allow the Misc. Civil Application No.77 of 2026, by condoning the delay of 164 days in filing the appeal. However, while condoning the delay, certain conditions have been imposed by the learned District Judge, (i) payment of cost of Rs.20,000/-and (ii) deposit of alleged 50% of arrears of license fees.

The petitioner is aggrieved by the part of the order which required the petitioner to deposit 50% of the alleged arrears of license fees. It is submitted that the petitioner has no objection for depositing the cost that is imposed by the learned District Judge, but sofar as the deposit of 50% of the alleged license fees is concerned, the same cannot be made a pre condition for condoning the delay. It is submitted that, while condoning the delay, the powers of the Court are confined only to the extent of satisfying itself about sufficient cause for not preferring the appeal within the limitation period. If the Court is satisfied about the sufficient cause shown by the applicant, the Court may consider condoning the delay. He further submits that, a pre-condition of deposit of amount which is subject matter of challenge before the Court can be directed to be deposited only in case the applicant is seeking stay to the impugned order. Thus, according to him, only in cases where of application seeking stay to the execution, operation or implementation of the judgment and decree, the Court can impose such condition for grant of stay. In the present case, according to him, he has not filed any application for stay as yet. Despite this fact, the learned District Judge in the operative part of the impugned order observed that, the prayer for stay of execution stands rejected. According to him, this is wholly unwarranted and reflects non-application of mind by the learned District Judge.

He further submits that, upon perusal of operative part of the order, the impugned order appears to be inherently defective and confusing for the reason that in spite of the fact that, no application for stay has been filed by the petitioner and order refusing stay is passed, the condition usually imposed while granting stay has been imposed as a condition for condonation of delay. Thus, according to him, the impugned order suffers from jurisdictional error and non-application of mind.

Reliance is placed on the reported decision of the Hon’ble Supreme Court in case of M/s GMG Engineering Industries Vs. M/s ISSA Green Power Solution reported in AIR 2015 Supreme Court 2675. In the aforesaid decision, the Hon’ble Supreme Court has observed that, while the Trial Court has exercised the discretion to condone the delay in filing the application to set aside the ex-parte decrees. According to the Supreme Court, the Trial Court was not justified in imposing such a unreasonable and onerous condition of depositing the entire suit claim of Rs.1,50,00,000/- (Rupees One Crore Fifty Lacs) and Rs.10,00,000/- (Rupees Ten Lacs), respectively. That too at such a stage when the issues were yet to be decided on merits. Reliance is also placed on reported decision of this Court in Gadekar Ginning and Pressing Pvt. Ltd. Dongargaon and another Vs. Canera Bank, Aurangabad and another reported in 2024 (6) Mh.L.J. 797, wherein this Hon’ble Court has taken a view that, in the matters of condonation of delay, unless the delay is condoned, the main proceedings would not be taken up for hearing. Hence, the stage of depositing the amount as may be prescribed/engrafted in any statute as a pre-condition for entertaining a substantive proceeding, would not be applicable while dealing with the applications for condonation of delay. Thus, according to the learned advocate for the petitioner, even before considering the matter on its own merits, the order directing to deposit 50% of the arrears of license fees for condoning the delay is not justified and in view of the settled legal position he seeks to quash and set aside the impugned order.

Per contra, learned advocate for the respondent Mr. Shaikh Mazhar Jahagirdar, has strongly opposed the submissions made by the learned advocate for the petitioner by submitting that the Appellate Court has sufficient discretionary and equitable powers under Section 5 of the Limitation Act to impose reasonable terms and conditions, as it may deem fit while exercising its discretion for condonation of delay, so as to protect the right of a decree holder where the judgment debtor has defaulted continuously in proceedings for recovery of money. It is submitted that in spite of the decree passed in favour of the respondents, the petitioner has failed to comply with the decree which constrained the respondent to file execution proceeding, in which, the petitioner has initially avoided the services itself and obstructed the execution and forced the executing Court to issue a Court Commissioner and grant police protection for taking possession. It is submitted that, although the petitioner is claiming that he has not filed any stay application, but in application for condonation of delay, the petitioner has specifically made a prayer for granting stay to the execution. He submitted that, the petitioner has not approached this Court with clean hands and is actively frustrating the judicial orders which can be gathered from the report of the Court Commissioner appointed by the Executing Court who states that, when he went to execute the warrant of possession, he was actively obstructed by the petitioner. Therefore, the Executing Court was pleased to allow the application granting police aid to the respondent to execute the decree and deliver vacant possession of the suit property.

He further submitted that, the impugned order is not self contradictory at all claimed by the petitioner. The impugned order recognizes the right to execute a validly passed decree vested in a decree holder, which cannot be suspended or paralyzed indefinitely at the whims of judgment debtor or conduct of the petitioner. According to him, the petitioner does not deserve any indulgence since he has not paid the license fees for three years and is actively evading the process and obstructing the execution of court decree which has resulted in necessitating police intervention.

Learned advocate has also relied on the decision of the Hon’ble Supreme Court in case of N. Mohan Vs. R. Madhu reported in 2020 (20) Supreme Court Cases 302.

I Have heard the respective parties and with their assistance, also perused the record. The application for condonation of delay in Appeal from original decree is governed by Order XLI Rule 3A which provides that, when an appeal is presented after the expiry of the period of limitation, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within limitation period. If the Court issues a notice to the respondent, the matter shall be decided finally by the Court before it proceeds to deal with the Appeal under Rule 11 or Rule 13, where the application has been made under Sub Rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under Rule 11, decide to hear the appeal.

In the present case, the petitioner has made a candid statement that, he has not filed any application for stay as yet in the first appeal filed by him. Therefore, only upon delay being condoned, the appeal can be registered and can be heard and only thereafter, the petitioner would be in a position to file an application for stay to the judgment and decree impugned in the First Appeal. Till the application for condonation of delay is not allowed, the appeal is not capable of being registered and entertained by the Appellate Court. Sofar as the powers of the Appellate Court while entertaining the application for condonation of delay is concerned, it is within the discretionary powers of the Court to record its satisfaction whether sufficient cause has been made out by the applicant for the delay that has occurred in approaching the Court while filing the appeal. Only upon recording its satisfaction, the application for condonation of delay can be allowed. As far as the first clause of the impugned order imposing cost of Rs.20,000/- on the petitioner is concerned, it is not objected by the petitioner, as it would compensate the respondent for the inconvenience caused to the respondent due to delay of 164 days in filing the Appeal. While answering the issue “whether the application is maintainable and delay of 164 days is to be condoned”, the learned Judge has recorded an affirmative findings. The learned Judge has elaborately discussed the reasons for delay caused in filing the appeal by the petitioner herein. After perusing the application, the learned Judge has also recorded his satisfaction that the delay does not appear to be intentional. The learned Judge has recorded his satisfaction that, the medical documents placed by the petitioner prima facie indicate that he was undergoing treatment during the relevant period. Thus, the delay appears to be natural and satisfactory. He has further observed that, there are various judgments of the Apex Court which hold that, the Court should be liberal in condoning the delay so as to advance substantial justice. He has relied on certain judgments which lay down that, liberal approach is designed to advance justice and not to penalize the parties and the law of limitation is founded on public policy. The rules of limitations are not to destroy the rights of the parties, but to act in aid and in furtherance of justice. After making the aforementioned observations, the learned Judge has made certain observations regarding the obstruction to the execution filed by the respondent at the hands of the petitioner and has further observed that, due to delay occurred in filing appeal by the petitioner, the decree holder cannot be made to wait for execution of his decree for an indefinite period and at the whims of the judgment debtor. Although there is no application for stay to the execution proceedings, the observations are made by the learned Judge on the assumption that, the stay is prayed for by the petitioner and has proceeded to pass an order directing to deposit of 50% of the arrears as directed by the Trial Court as per the list of arrears submitted by the plaintiff from 13.01.2023 till the date of the order.

From the observations made by the learned District Judge, in the impugned order, it appears that, the learned Judge was harping under the wrong belief that application for stay has been made by the petitioner. Therefore, the condition for condoning the delay was erroneously imposed while granting the stay. The learned Judge has committed an error in passing the final order, although all the observations and findings are recorded in favour of condonation of delay by recording satisfaction for sufficient cause that was stated by the petitioner in the application. Yet the condition has been imposed for condoning the delay by directing to deposit 50% arrears in the Trial Court. Once having recorded the satisfaction about the reasons for delay and about the bonafides of the petitioner, the learned District Judge could not have imposed the condition of depositing 50% of the arrears for condoning the delay.

This Court in the reported decision of Gadekar Ginning and Pressing (supra) has taken a view that, when the main proceedings are not taken up, before condoning the delay, the condition of deposit of amount cannot be imposed while condoning the delay. In short, this Court has held that depositing of amount cannot be made a pre-condition for entertaining the application for condonation of delay.

Thus, in view of the observations made herein above, the order passed by the learned District Judge-1 to the extent of clause (3) of the order dated 29.06.2026 which directs the petitioner to deposit 50% of the arrears as per the list submitted by the plaintiff is quashed and set aside. Rest of the order shall remain as it is.

With the aforementioned observations, Writ Petition is allowed and accordingly disposed of.

Rule is made absolute in the above terms.