Babn Genu Dhorake(Since ... vs Maruti Balkrishna Yede And Ors
2022 Latest Caselaw 10210 Bom

                                                26-IA-18626-2022.docx

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CIVIL APPELLATE JURISDICTION

              INTERIM APPLICATION NO.18626 OF 2022
                               IN
                 SECOND APPEAL NO.1041 OF 2004
                              WITH
              INTERIM APPLICATION NO.18630 OF 2022
                               IN
                 SECOND APPEAL NO.1042 OF 2004

Baban Genu Dhorake
Since deceased through legal
representatives
1/1. Thakaram Baban Dhorake and Ors.                 ....Applicants
      Vs.
1. Maruti Balkrishna Yede and Ors.                   ....Respondents

                                       .....

Mr. K.S.Dewal for the Applicants/Appellants.
Mr. Jaydeep Deo for the Respondent Nos.1 and 2.

                                    CORAM: SANDEEP K. SHINDE, J.

RESERVED ON : JULY 29, 2022 PRONOUNCED ON: OCTOBER 4, 2022 P.C.

1. These two applications seek to recall and set aside

order of abatement and restore the Second Appeals to the file by

condoning the delay of 16 years and 121 days.

2. Heard learned counsel for the Parties.

3. Facts:

Shri Baban Genu Dhorake, father of the applicants

was sole appellant in two Second Appeals. He passed away on

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25th November, 2005. Applicants are his heirs. Appellant, was

defendant in the Special Civil Suit No.921 of 1997, instituted by

the respondents for possession and mesne profits. Applicants'

case is that, respondents had filed suit, only to create

impediment in the Regular Civil Suit No.20 of 1997 filed by their

father Baban Genu Dhokare for declaration and perpetual

injunction. Trial Court by common judgment, dated 17 th April,

2014, decreed suit filed by applicant father and dismissed suit of

the respondents. However, Appellate Court reversed the decrees,

drawn, in both the suits by judgments dated 17 th April, 2004 and

15th April, 2004. Thus, these Second Appeals were filed by Baban

Dhokare, father of applicants. Second Appeals were admitted on

7th October, 2004 and execution of the decrees was stayed.

4. Pending appeals, sole appellant passed away on 25 th

September, 2005.

5. It is applicants' case that in the month of September,

2022, they had received summons dated 18th August, 2022 in

Regular Darkhast No.20 of 2004, by which they were called upon

to remain present before the executing Court on 30 th September,

2022. Whereafter they went to meet their local lawyer, but were

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26-IA-18626-2022.docx

informed that lawyer had expired on 23rd April, 2021. Their case

is, they were unaware of the Second Appeals and the

proceedings therein and only after establishing contact with the

advocate, who was representing the appellant, they moved

present applications. It is their contention that delay on their part

was neither deliberate nor intentional and, therefore, in the

interest of justice, delay may be condoned and appeals be

restored to the file.

6. It appears, respondents circulated Second Appeals on

9th April, 2021, with due intimation to the counsel appearing for

the appellant. However, on 9th April, 2021, none appeared for the

appellant. It appears, counsel appearing for the respondents

apprised the Court that pending appeal, sole appellant has

expired. Whereafter, hearing was stand over to 20 th April, 2021.

Thereafter, respondents by e-mail dated 15 th April, 2021

intimated appellants advocate of matter being adjourned to 20 th

April, 2021. However, no steps were taken to bring legal

representatives on record. Thereafter, once again advocate for

respondents informed the appellants' advocate vide e-mail dated

16th March, 2022 stating sole appellant has expired on 25 th

November, 2005 and matter is circulated for 17 th March, 2022.

However,           since       no    steps   were     taken       to     bring       legal

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                                                  26-IA-18626-2022.docx

representatives on record, this Court vide order dated 17 th

March, 2022 dismissed the Second Appeals as abated.

Thereafter, on 26th March, 2022, advocate for the appellant

addressed a letter to Mr. Baban Genu Dhorake (Appellant) to

contact him for instructions. The postal envelope returned

unclaimed reporting 'Addressee was dead'. Therefore, it could be

seen that for want of instructions and particulars of legal

representatives, advocate for the appellant could not take steps

to restore the appeal. However, in the meanwhile, may be in or

around August, 2022, executing Court, issued possession

warrant, whereafter, applicants contacted their advocate and

filed these applications on 20th September, 2022.

7. The delay of 16 years and 121 days is inordinate and

has not been explained by the applicants at all. All the applicants

are senior citizens and it is very unlikely that they were unaware

of the appeals instituted by Baban Genu Dhokare. Suit in this

case was instituted in the year 1997 and the decree for

possession was passed by the Appellate Court in 2004.

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                                          26-IA-18626-2022.docx

8              In consideration of facts of the case and for want of

explanation by the applicants for not taking timely steps, in my

view, applications moved after 16 years to set aside the order of

abatement calls for no interference. Applications are, therefore,

dismissed.

                                         (SANDEEP K. SHINDE J.)




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