Bombay High Court
Jagannath Namdeo Jare Died Lrs ... vs Khandu Namdeo Jare Died Lrs ... on 10 July, 2017
Bench: S.P. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1778 OF 2017
1) Jagannath Namdeo Jare (Died Thr. L.Rs)
1-A) Kusum Sambhaji Zarekar
Age - 60 years, Occu- Househjold
R/o Ghospuri tq. & Dist - Ahmednagar
1-B) Radhakishan Jagannath Jare
Age - 58 years, Occu- Agri
R/o Hingangaon Tq. & Dist - Ahmednagar
Through their G.P.A. Holder i.e. petitioner No. 2-C
2) Pandurang namdeo Jare
(Died Thr. L.Rs.)
2-A) Smt. Gangubai Pandurang Jare
Age - 58 years, Occu- Agri
R/o. Hingangaon Tq. & Dist- Ahmednagar
2-B) Hirabai w/o Gajaram Dani
Age - 58 years, Occu- Agri
R/o Shendi Tq. & Dist- Ahmednagar
2-C) Ashabai Sainath Dhonde
Age - 48 years, Occu- Labour
R/o Raosaheb Khandagale Chal, Nalegaon
Ahmednagr Tq. & Dist- Ahmednagar
.....Petitioners
Versus
Khandu Namdeo Jare (Died Thr. L.Rs.)
1) Bhausaheb s/o Khandu Jare
Age - 41 years, Occu- Agri
2) Raosaheb s/o Khandu Jare
Age - 38 years, Occu- Agri
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3) Kondji s/o Khandu Jare
Age- 37 years, Occu- Agri
4) Kaushallya Khandu Jare
Age- 64 years, Occu- Agri
5) Ratnabai Khandu Jare
Age - 67 years, Occu- Agri
All R/o Hingangaon Tq. & Dist- Ahmednagar
6) Sulochana Sanjay Bhapkar
Age - 43 years, Occu- Agri
R/o Gundegaon Tq. & Dist- Ahmednagar
...Respondents
...
Mr. Amol S. Gandhi Advocate for petitioners
Mr. Y. V. Kakade, Advocate for respondent no. 2
...
[CORAM: SUNIL P. DESHMUKH, J.]
Date: 10th July, 2017
JUDGMENT :
1. Rule. Rule made returnable forthwith and heard
finally with consent of learned advocates for the parties.
2. Writ petition has been moved against order dated 20th
October, 2016 passed by District Judge-6, Ahmednagar in
miscellaneous civil application no. 78 of 2013. Said
application, is rejected by District Judge-6 was filed by
present petitioner for condonation of delay caused in filing
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application for setting aside abatement.
3. It emerges that regular civil suit no. 1119 of 1987
against predecessor of present petitioners had been
instituted for partition and separate possession by
respondents and the same was decreed by judgment and
order dated 26th April, 1995. Against aforesaid judgment
and decree, petitioners i.e. Jagannath and Pandurang
defendants no. 1 and 2 had preferred regular civil appeal
no. 311 of 1995 in district court, Ahmednagar. During
pendency of said appeal, original plaintiff-Khandu died on
19th October, 1998. Around December, 2000, legal heirs of
Khandu filed application exhibit-22 informing thereunder
death of Khandu. It appears that application exhibits-23
and 24 had been moved on behalf of appellants requesting
to grant time to bring legal heirs of deceased Khandu on
record. However, till April, 2001 no progress had been
made and court had passed order on 6th April, 2001
declaring appeal as abated.
4. Learned counsel for petitioners submits that after
death of Khandu his legal heirs approached the petitioners
and conveyed their intention to settle the matter as per
mutation entry no. 436 and in the circumstances petitioners
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should not pursue the matter further as nothing would be
done. They had not realised that around 2009, execution
petition came to be filed by legal heirs of decree holder.
However, a notice came to be issued from the revenue
authority for partition pursuant to the decree and
thereupon miscellaneous civil application no. 78 of 2013
came to be filed for condonation of delay caused in filing
application for setting aside abatement order.
5. Learned counsel Mr. Gandhi submits that petitioner's
father is illiterate person and education level of the
petitioner is not so high In the circumstances, petitioners
believed false impression given by the respondents and
they did not prosecute the appeal. He goes on to submits
that appeal is a substantive right, and matter concerns
immovable property. He submits that appeal deserve to be
revived for consideration on merits, lest the substantive
right pursuant to law would be lost. He therefore, urges to
allow the writ petition and submits that inconvenience
caused to the other side can be made good by imposing
costs.
6. On the other hand, learned counsel Mr. Kakade
appearing for the respondents submits that the reasons put
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forth by the petitioners seeking condonation of delay
absolutely did not carry any substance even by semblance.
He submits neither any understanding as alleged had ever
been given about intention nor the respondents had even
whispered or suggested of giving up right to property
under the decree passed in regular civil suit no. 1119 of
1987.
7. He submits that applicants had filed Applications
exhibit-23 and 24 seeking time to bring legal heirs of
deceased plaintiff - Khandu on record, however, till 6th
April, 2001, no movement had been made to bring legal
heirs of Khandu on record. He submits that no
understanding had been given about intention to settle the
matter. Having regard to that decree was not being acted
upon, the same compelled respondents to move the court
by filing execution petition. Accordingly, notices were
issued and served upon judgment debtor/legal heirs, yet,
no response had been given by the petitioners. As a matter
of fact, thereafter, court passed order pursuant to section
54 of Code of Civil Procedure and even then no movement
had been made until notice had been issued for delivery of
possession.
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8. Over and above that Mr. Kakade points out that one
proceeding bearing regular civil suit no. 220 of 2013 came
to be instituted by the petitioners seeking declaration that
decree passed in regular civil suit no. 1119 of 1987 to be
null and void.
9. After having heard learned counsel, while the court
was considering the application for condonation of delay, it
observed that no sufficient and satisfactory reasons are
given for condonation of delay. In the present matter
application has been moved for setting aside abatement
about twelve years after abatement order had been passed
in the year 2001.
10. It appears that miscellaneous civil application had
been moved only on 6th April, 2013. There is no material
placed showing there had been any understanding given by
respondents to petitioners. The court has adverted to that,
there is no plausible explanation given for the delay
condonation. Even after notice has been given of execution
or even after the decree had been referred for execution
under section 54 of Code of Civil Procedure by the court,
no explanation is given.
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11. In the circumstances, looking at the order and the
reasons appearing while rejecting miscellaneous civil
application no. 78 of 2013 under the paragraphs no.7 to 14,
it does not appear that the appellate court has committed
any error in not exercising discretion in favour of
petitioners.
12. The applicants have failed to put forth sufficient
causes for condonation of delay. The impugned order, as
such, does not call for interference.
13. Writ petition, therefore, stands dismissed.
14. Rule discharged.
[SUNIL P. DESHMUKH, J.]
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