Bombay High Court
Gugudas Bondkuji Kamble (Dead), ... vs Ghularam Ganpat Borkar (Dead), ... on 16 August, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL APPLICATION (CAS) NO.244 OF 2016
IN
SECOND APPEAL ST. NO.3444 OF 2016
Gurudas Bondkuji Kamble (Dead) Thr. LRs. Tulsa w/o Gurudas Kamble and ors.
-vs-
Ghularam Ganpat Borkar and ors.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
Shri Y. S. Gorle, Advocate for applicants.
Shri Nitin R. Bhisikar, Advocate for respondents.
CORAM : A.S.CHANDURKAR, J.
DATE : AUGUST 16, 2017
By this application it is prayed that delay of 754
days in filing the second appeal be condoned.
The first Appellate Court on 11/10/2013 dismissed
the appeal filed by the original defendant Gurudas
Kamble and confirmed the decree passed by the trial
Court. In the application it is stated that said Gurudas
Kamble expired on 28/08/2015 and after his death,
while perusing all available documents, it came to the
knowledge of his legal heirs that during his life time
Gurudas had approached his counsel at Nagpur for filing
the appeal. After gathering further information it was
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learnt that no such appeal has been filed. After
obtaining certified copy, the appeal came to be filed on
12/02/2016. An additional affidavit has also been filed
in support of the prayer for condonation of delay. In this
affidavit it is stated that during his life time, Gurudas
had told the applicants that he had approached a
counsel at Nagpur for filing the appeal. On gathering
information, it was learnt that no appeal has been filed.
It is therefore prayed that the delay in filing the appeal
be condoned.
The application is opposed by the original plaintiff
by submitting that after the trial Court decreed the suit,
the plaintiff had filed execution proceedings being
Regular Dakhast No.19/2005. The judgment debtor-
Gurudas was served with the notice of these proceedings
on 22/01/2014. However no steps were taken from
21/01/2014 till the death of Gurudas and thereafter till
January 2016 when the certified copy came to be
applied by his legal heirs. It is further stated that the
reasons assigned are not sufficient.
Heard the learned counsel for the parties who have
argued on the basis of the application, additional
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affidavit and the reply filed on record.
The judgment of the first Appellate Court is dated
11/10/2013. Gurudas was served with notice in the
execution proceedings on 21/01/2014. According to the
applicants said Gurudas during his life time had
approached a counsel for preferring the second appeal.
However except stating that a counsel had been
approached in that regard, no further details have been
mentioned even in the additional affidavit. The name of
the counsel who was approached is conspicuously
missing. If according to applicants Gurudas during his
life time had approached a counsel which fact was told
to the applicants by Gurudas and the applicants after
making inquiry found that no appeal was filed, the name
of said counsel could have been mentioned in the
application.
Even otherwise it can be seen that after being
served in the execution proceedings on 21/01/2014,
Gurudas during his life time does not appear to have
taken any steps to challenge the decree as passed. It is
to be noted that the decree was put under execution and
the judgment-debtor would have normally taken steps to
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prevent its execution. Thus from the application and the
additional affidavit, I do not find that any sufficient
cause has been made out for condoning delay. The
application is therefore rejected. Consequently second
appeal also stands dismissed.
JUDGE
Asmita
