Bombay High Court
Santosh Chandrakant Khot Thr. ... vs Sudarshan Dnyaneshwar Khot Thr. ... on 17 February, 2021
Bench: C.V. Bhadang
9-sa-414-2020 with ia-2515-2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.414 OF 2020
WITH
INTERIM APPLICATION NO.2515 OF 2019
Santosh Chandrakant Khot
Through POA Holder
Kondabai Chandrakant Khot ..Appellant
Vs.
Sudarshan Dnyaneshwar Khot
Through POA Holder
Dnyaneshwar Khot & Ors. ..Respondents
----
Mr.Nagesh Y. Chavan for the Appellant.
Mr.Shashank C. Mangle i/b Mr.Balwant Salunke for the
Digitally signed Respondents.
Nilam by Nilam Kamble
----
Kamble Date: 2021.02.17
14:38:57 +0530
CORAM : C.V. BHADANG, J.
DATE : 17th FEBRUARY 2021
P.C.
1. Heard for some time.
2. The appeal takes exception to the order by which the
First Appellate Court has refused to condone the delay in filing the
appeal challenging the decree passed by the trial Court. The
appellant is the purchaser of the suit property from Late
Dnyaneshwar Khot under a registered sale deed dated 20 th July
2007. Dnyaneshwar expired somewhere in the year 2009, after
which the respondents (Original Plaintiffs) filed RCS No.26 of 2010
N.S. Kamble page 1 of 4
9-sa-414-2020 with ia-2515-2019
against the appellant inter alia for partition of the suit property and
for the declaration that the Sale Deed of the year 2007 is illegal and
bogus and executed without consideration. The case made out in
the plaint is that late Dnyaneshwar was given to the vice drinking
liquor and taking disadvantage of the same, the sale deed was got
executed.
3. It appears that the appellant did not file a written
statement in the suit although he entered appearance through
Advocate Mr.Pawar.
4. In such circumstances, the suit was directed to proceed
without written statement of the appellant. Eventually by a
judgment and decree dated 27th June 2014 the suit came to be
decreed. The appellant sought to challenge the same before the
appellate Court, where there was a delay, on the ground that the
appellant is serving in military and was not residing in the village
and was unaware of the passing of the decree. It was contended
that he became aware of the decree on receipt of a notice from the
Deputy Superintendent of Land Records on 8 th May 2017 after which
the certified copies were obtained and the application for
condonation of delay came to be filed on 20 th June 2017 with a
N.S. Kamble page 2 of 4
9-sa-414-2020 with ia-2515-2019
delay of 2 years 11 months and 23 days, which application has been
dismissed.
5. I have heard the learned counsel for the appellant and
the learned counsel for the respondent. There is a serious dispute as
to whether in the interregnum the decree of partition and separate
possession has already been executed.
6. In my considered view, it would be appropriate to call
for a report from the executing Court on the status of the execution
of the decree passed by the trial Court. Although the second appeal
will have to be considered on its own merits on the basis of the
substantial questions of law arising, if any, the question of grant of
interim relief would depend upon the question whether the decree is
already executed.
7. In that view of the matter, stand over to 17 th March
2021. In the meantime the office to call for a report from the
executing Court, about the status of the execution and whether the
decree has been executed and possession delivered to the
respondents.
N.S. Kamble page 3 of 4
9-sa-414-2020 with ia-2515-2019
8. The interim protection, already granted, if any, to
continue till next date.
C.V. BHADANG, J.
N.S. Kamble page 4 of 4
