Abasaheb Sonba Gadage And Another vs Surekha Popat Gawali And Others
2021 Latest Caselaw 10193 Bom

                                          (1)


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                 CIVIL APPLICATION NO. 1144 OF 2020
                                 IN
                 SECOND APPEAL ST. NO.627 OF 2020
                               WITH
                 CIVIL APPLICATION NO.5512 OF 2021
                 CIVIL APPLICATION NO.1145 OF 2020

 1.       Abasaheb Sonba Gadage
          and Anr.                                   = APPLICANTS

          VERSUS

 1.       Surekha Popat Gawali
          and Ors.                                   = RESPONDENT/S
                                         -----
 Mr.SS Bora, Adv. h/for Mr.VS Badakh,Advocate for Applicants;
 Mr. Mangesh Jadhav,Adv. H/ for Mr. AS Sawant, Adv. For
 Respondent Nos.1, 2-A, 2-B, 4-B, 4-C, 4-D, 5 and 6;

 Mr.JR Patil, Adv. For Resp.Nos. 3, 7 to 10 (Absent)
                                         -----

                                  CORAM :        SMT.VIBHA KANKANWADI,J.

                                  DATE :         3rd August, 2021.
 PER COURT :-

1. Present application has been filed for getting

delay of 1766 days condoned in filing the Second Appeal.

2. Heard learned Advocates appearing for the

respective parties. In order to cut short, it can be stated

that both of them have made submissions in support of their

respective contentions.

3. Present applicants are original defendant Nos.10

and 11. Present Respondent No.1 - original plaintiff had

filed Regular Civil Suit No.19/2003 for partition and separate

possession along with declaration and perpetual injunction

before Joint Civil Judge, Senior Division, Parner, District

Ahmednagar. The said suit came to be decreed on

25.8.2008. Present applicants-appellants had thereafter

filed Regular Civil Appeal No.265/2008, challenging that

decree before the learned Principal District Judge,

Ahmednagar. The appeal was allowed. The impugned

judgment and decree passed by the learned Trial Judge was

set aside and replaced. However, the Regular Civil Suit

was, in fact, decreed in the appeal itself. Even the shares

were maintained. But it was clarified that the present

appellants are, as far as practicable, entitled in equity to

retain the house property and the land purchased, which

shall be allotted to share of deft.No.2 at the time of final

decree proceedings. Now, original deft.Nos.10 and 11 want

to challenge the said decree passed by the learned Principal

District Judge, whereby the decree passed by the Trial

Judge was modified. However, as aforesaid, there is the

delay. Hence, the present application.

4. The applicants are contending that if we peruse

the operative part of the judgment of the learned first

Appellate Court, then it says that the appeal is allowed.

Even the judgment and decree passed by the Trial Judge,

has been set aside and then replaced and, therefore, they

were under impression that they are not required to file an

appeal. It was so informed to them by their Advocate and it

was told by their Advocate that they should not worry. But,

during the course of the execution proceedings, when they

realized that they are likely to loose possession of their

property, then they have been advised to challenge the

judgment and decree before this Court. It is stated that in

the course of execution, Tahsildar, Parner had passed an

order dated 18.11.2019, thereby finalizing the partition

chart, though the applicants had raised an objection for the

same. They had preferred RTS Appeal No.310/2019 against

the said partition chart and it is pending. Since their rights

and interest would be affected, they want to challenge the

judgment and decree passed by the leaned First Appellate

Court. The delay is not intentional.

5. At the outset, it can be seen that the applicants

are not coming with a case that they are not aware about

the decision in the First Appeal. Now, they want to blame

their Advocate, who had advised them not to file the Second

Appeal. If we consider the operative part, it is clear, though

it is stated that the appeal is allowed, that the judgment and

decree is set aside but replaced. By replacing also, further

part is clearly stated. On the contrary, something in their

favour has been mentioned that as far as practicable, the

house property and the land purchased by the applicants,

should be given to the share of their vendor. Now, according

to the applicants, the partition chart has been so prepared

that they would loose the possession. Here, it is to be noted

that there are so many parties to the proceedings. 1/10 th

share has been granted to the plaintiff and other co-sharers.

It should be for the executing authority to consider as to

how the said partition should be effected. But, certainly, as

per the decree, the equity should be borne in mind. In that

process, if the appellants are going to loose the possession

of certain portion, then nobody can help for the simple

reason that if they have purchased more than the share of

deft.No.2, then they are bound to loose that portion. When

even after knowing the decision in their First Appeal, under

some impression, if the applicants have kept mum for so

many days, then this Court cannot help them. Further, they

have already filed the appeal, challenging the said partition

chart and it is pending. They cannot resist the shares in the

suit property to get their share. Their contention about the

fact that they are bonafide purchasers for value without

notice, has been rejected by both the Courts below, which is

mainly the fact. In the circumstances, the application for

condonation of delay deserves to be rejected and same is

accordingly rejected. Pending Civil Applications stand

disposed of.

(SMT. VIBHA KANKANWADI) JUDGE

BDV