Fuliben Vestabhai vs Oliabhai Dashariabhai Vasava
2023 Latest Caselaw 5868 Guj

                                                                                   NEUTRAL CITATION




     C/CA/3057/2020                                 ORDER DATED: 10/08/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CIVIL APPLICATION NO. 3057 of 2020

                      In F/SECOND APPEAL NO. 27094 of 2020

                                    With
                       F/SECOND APPEAL NO. 27094 of 2020
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                             FULIBEN VESTABHAI
                                    Versus
                        OLIABHAI DASHARIABHAI VASAVA
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Appearance:
MR DHAIRYAWAN D BHATT(11817) for the Applicant(s) No. 1,2,3,4,5
DECEASED LITIGANT for the Respondent(s) No. 1
MR NK MAJMUDAR(430) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1.1,1.2,1.3,1.4
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 CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                Date : 10/08/2023

                                 ORAL ORDER

ORDER IN CIVIL APPLICATION :

This is an application preferred by the applicants for condonation of delay of 3074 days occurred in filing the aforesaid Second Appeal.

Heard learned advocate Mr.Dhairyawan Bhatt for the applicants and learned advocate Mr.Vishvesh Pujara for Mr.N.K.Majmudar for the respondent No.2. Though served, none has appeared for other respondents.

Having heard learned advocates for the respective

NEUTRAL CITATION

C/CA/3057/2020 ORDER DATED: 10/08/2023

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parties and considering the averments made in the application, more particularly, in paragraph 3 of page 3 and in paragraph 3 of page 4 of the application for condonation of delay, it appears that as such no explanation much less a sufficient or a satisfactory explanation has been given by the applicants for the delay caused in preferring the above referred Second Appeal. It can also be seen that the impugned order challenged in the Second Appeal is dated 22.7.2022 passed in Regular Civil Appeal No.3 of 2011 and there is huge and inordinate delay of 3074 days in preferring the above referred Second Appeal and the cause for the delay is that the learned advocate who was representing the applicants before the learned trial Court has not communicated the judgment and order of the learned lower court and when they received the notice for execution proceedings, the applicants came to know about the said order and thereafter the Executing Court has passed the order on 18.10.2019 and thereafter, after obtaining the certified copy of the judgment and order of the Executing Court, the applicants have preferred the above referred Second Appeal.

It is trite law that the case of the applicants should not be thrown on technical ground of delay and for advancement of substantial justice, liberal approach for condonation of delay should be adopted. In the instant case, as stated above, sufficient cause for condonating the delay in filing the above referred Second Appeal has not been shown, rather the applicants have remained negligent in filing the Second Appeal. Hence, no case is made out to

NEUTRAL CITATION

C/CA/3057/2020 ORDER DATED: 10/08/2023

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exercise the discretion and judicial power conferred upon this Court under section 5 of the Limitation Act to condone the delay.

Under the circumstances, the application fails and the same is hereby dismissed.

ORDER IN SECOND APPEAL :

In view of the above, the Second Appeal does not survive and the same stands disposed of accordingly.

(S. V. PINTO,J) H.M. PATHAN