Kumar Kallappa Awalekar vs 1 Mukesh Tarachand Zanwar
2023 Latest Caselaw 13246 Bom

Bombay High Court

Kumar Kallappa Awalekar vs 1 Mukesh Tarachand Zanwar on 21 December, 2023

Author: Amit Borkar

Bench: Amit Borkar

2023:BHC-AS:38992
                                                                                   13-sa-717-2023.doc


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

                                   SECOND APPEAL NO.717 OF 2023
                                              WITH
                               INTERIM APPLICATION NO.17982 OF 2023
                                                IN
                                   SECOND APPEAL NO.717 OF 2023
                    Kumar Kallappa Awalekar                           ... Appellant
                              V/s.
                    Mukesh Tarachand Zanwar and Ors.                  ... Respondents

                    Mr. Surel S. Shah a/w Saakshat Relekar i/b Mr. Ishaan
                    Kapse for the Appellant-Applicant.

                                                     CORAM : AMIT BORKAR, J.

                                                     DATED     : DECEMBER 21, 2023
                    P.C.:

1. The appellant is challenging decree passed by the Trial Court granting specific performance of agreement. The respondent No.1 is original plaintiff who filed Special Civil Suit No.64 of 2010 seeking specific performance of agreement to sale dated 4 th January 2010. Having considering agreed consideration of Rs.12,26,465/- out of which Rs.2,00,001/- was paid as earnest amount. Trial Court's judgment and decree dated 27 th November 2013 decreed the suit and directed defendants to execute sale deed by accepting balance consideration within three months.

2. The appellant filed appeal before the District Court on 30 th August 2018. On perusal of the record, it appears that the appellants appeared before the Executing Court and filed an application under Section 47 on 20th October 2015. Said

13-sa-717-2023.doc

application was rejected on 6th February 2017. Moreover, Superintendent of the Trial Court executed the sale deed in favour of respondent No.1 on 5th September 2015. According to learned advocate for the appellant, respondent No.1's name was recorded in revenue record. The appellant in 2016 challenged the order of recording name of Respondent No.1 in mutation by way of complaint No. SR No.31 of 2016 which was rejected on 14 th march 2016. Aforesaid facts indicates that the appellants had knowledge of passing of decree atleast on 20 th October 2015 and, therefore, ought to have filed the appeal within reasonable period thereafter. However, the appeal appears to have been filed on 30th August 2018. Therefore, rejection of application for condonation of delay, the order of rejection of condonation of delay does not suffer from legal infirmity.

3. The view adopted by the Appellate Court refusing to condone the delay cannot be termed as perverse. Hence, the second appeal stands dismissed. No costs.

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

5. Since, this Court in Writ Petition No.11745 of 2018, continued ad-interim relief on 17th October 2018. The said ad- interim relief was inforce during the pendency of the decision of application for condonation of delay, the said relief is continue for period six weeks.

(AMIT BORKAR, J.)