Rajaram Govind Kalbhor vs Ganpat Mugutrav Kalbhor
2023 Latest Caselaw 13242 Bom

Bombay High Court

Rajaram Govind Kalbhor vs Ganpat Mugutrav Kalbhor on 21 December, 2023

Author: Amit Borkar

Bench: Amit Borkar

2023:BHC-AS:38986
                                                                                 12-SA-716-2023.doc


                    Nikita
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION

                                   SECOND APPEAL NO.716 OF 2023
                                              WITH
                               INTERIM APPLICATION NO.17974 OF 2023
                                                IN
                                   SECOND APPEAL NO.716 OF 2023

                    Rajaram Govind Kalbhor                          ... Appellant
                              V/s.
                    Ganpat Mugutrav Kalbhor                         ... Respondents


                    Mr. Girish R. Agrawal a/w Ms. Naina Boraste for the
                    Appellant-Applicant.


                                                  CORAM : AMIT BORKAR, J.

                                                  DATED      : DECEMBER 21, 2023
                    P.C.:

1. The Appellate Court by impugned judgment and decree rejected appellant's application for condonation of delay of three and half years challenging the decree for partition.

2. The respondent filed suit for partition. In the said suit, the appellant appeared through advocate. However, the advocate filed a pursis of "no instructions". The record indicates that the Trial Court issued notice to the appellants, according to the appellant such notice was never received by the appellant. The Trial Court passed a decree on 1st October 2009.

3. The appellants filed appeal challenging decree for partition on 20th March 2013.

12-SA-716-2023.doc

4. On perusal of the impugned judgment, it appears that the appellant was served with notice of execution of decree and the appellants appeared before the Executing Court on 5 th November 2011. Therefore, undisputedly, the appellant had notice of decree atleast on 5th November 2011. Even, thereafter the appeal is filed only on 20th March 2013. Only explanation furnished is that one of the appellant who was looking after the Court proceedings was unwell. Considering the nature of decree and the explanation furnished, it cannot be accepted as sufficient cause within the meaning of Section 5 of the Limitation Act, 1963.

5. The lower Appellate Court, therefore, was justified in rejecting the application. The view adopted by the Appellate Court cannot be termed as perverse. Hence, no substantial question of law arises for consideration.

6. The second appeal stands dismissed. No costs.

7. In view of dismissal of second appeal, the interim application stands disposed of as infructuous.

(AMIT BORKAR, J.)