- (1.)HEARD learned Counsel for the parties. Rule. Learned Counsel appearing for the respondents, waive notices. By consent of the learned Counsel, heard forthwith.
(2.)BY this revision application, the petitioners take exception to the order dated 5th February, 2007 passed by Ad hoc District Judge, 2 at Panaji in Civil Miscellaneous Application No.64/2005 by which the application seeking condonation of delay of 3 years and 3 months in filing appeal against the preliminary decree dated 14th September, 2001 has been allowed. By the said order, the lower appellate Court has also granted stay of the decree passed by the trial Court.
Briefly, the facts leading to filing of the present revision application are as under : The petitioners herein filed Special Civil Suit No.239/1981 in the Court of Civil Judge, Junior Division, Mapusa against 14 defendants. The record discloses that for quite some time the defendants in the suit were not served. Somewhere in December, 1999, defendant/ respondent no.1(a) was served at the address of her husbandJeronimo Zuzarte and it is the case of respondent no.1(a) that her marriage with her husband was dissolved by the decree dated 15th June, 1991 and thereafter, she had got married with one Jao Baptista D'Souza on 17th October, 1996 and as such she could not and was not served at the address of her husband from whom she had already obtained divorce. Thereafter, the matter was transferred to Court of First Additional Civil Judge, Junior Division, Mapusa, who issued notice to parties/ advocates returnable on 30th March, 2001. The record discloses that the legal representatives of defendant no.1, who had expired were brought on record even before they were served and on 14th September, 2001, the trial Court passed preliminary decree for partition of the suit property. Thereafter, the trial Court appointed one Laxman Dessai Commissioner for partitioning the property by metes and bounds in terms of the decree, who submitted report on 12th November, 2001 and thereafter an application was moved on behalf of the plaintiffs' attorney that the property be sold in public auction. In the roznama dated 10th April, 2002, it was mentioned that summons to defendant nos.1(a) to 1(d) and some other defendants were returned unserved and the matter was adjourned for taking necessary steps by plaintiffs. On 9th December, 2002, the legal representatives of defendant no.1 were ordered to be served by publication. On 3rd February, 2003, the legal representatives were declared to be duly served by publication and it was ordered that the suit would proceed ex-parte against them. On 17th March, 2003, Advocate Nasnolkar filed vakalatnama on behalf of the defendant no.1(a) and thereafter, the matter was adjourned on behalf of defendant no.1(a), who is respondent no.1(a) in this petition. Thereafter, the matter was adjourned from time to time.

On 7th December, 2004 Writ Petition No.566/2004 was filed on behalf of the legal representative no. 1(c) of defendant no.1 in this Court against the order dated 16th October, 2004 passed by the trial Court dismissing the application seeking dismissal of the suit for want of jurisdiction. This Court by order dated 27th January, 2005 held that Writ Petition was not maintainable and preliminary decree ought to have been challenged by filing an appeal against the same and no application could have been filed before the trial Court itself challenging the validity of the preliminary decree. It is the case of defendant no.1(a) that thereafter she obtained certified copy of the judgment and decree and she was advised to file First Appeal against the said decree since First Appeal was maintainable against the preliminary decree. It is further the case of the applicant that she was unaware of the appropriate remedy to be adopted and she bonafidely relied upon the advice given by the advocate whose services she had engaged, from whom she did not get proper advice. At no point of time, her advocate advised her either to file an application for setting aside ex-parte decree or to file an appeal against the preliminary decree. She realised about the correct remedy only after Writ Petition No.566/2004 was dismissed by this Court and thereafter she engaged the services of an advocate, who advised her to file First Appeal along with an application for condonation of delay.

(3.)IT is further the case of defendant no.1 that for quite some time her family had to go through severe trauma on account of certain events which disrupted the peace of the family. Her paternal uncle who was the original defendant no.3 had expired in December, 2001 which was followed by the death of defendant no.4 in January, 2003 and thereafter in the same year, the son of original defendant no.4 Teddy Lobo expired. The mother of defendant no.1(a) who was suffering from heart ailments and asthmatic problems died on 8th April, 2004. On these facts defendant no.1 sought condonation of delay of over 3 years 3 months in filing appeal from the preliminary decree.
The application seeking condonation of delay was opposed on behalf of respondent no.6 and respondent nos.2, 4 and 5 by filing separate replies. Along with an application for condonation of delay, an application for stay of the impugned decree was also made. By the impugned order, the lower appellate Court condoned the delay subject to payment of costs of Rs.5,000/-. The lower appellate Court granted stay of the decree upon the application furnishing bank guarantee to the tune of Rs.25,000/- as a security for the due performance of the decree in case the appeal is dismissed.