1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 41 OF 2009 Lalchand Dhanraj Jain ....Appellant. Versus Sudhakar Chintaman Deshmukh ....Respondents. Shri. M.C. Jain h/f. Shri. B.R. Warma, Advocate for the appellant. Shri. Mukund Kulkarni, Advocate for the respondent. CORAM : R.K. DESHPANDE, J. DATE : 30th November, 2009 ORAL ORDER : 1. This appeal challenges the order dated 16.3.2009, passed by the learned District Judge-2, Dhule, dismissing Civil Misc. Application No. 11/2009 for condonation of delay in filing an application for restoration of appeal No. 43/2002, which was dismissed on 27.3.2006. The facts in brief are as under :- 2. The appellant is the original defendant. The trial Court in Regular Civil Suit No. 116/1998 passed the judgment and decree on 18th of December 2001 and the defendant, who is the appellant herein, is directed to remove the unauthorise encroachment upon C.T.S.No. 247 to the extent of 6 x 2 Mtrs. within a period of two months from the date of the order and to restore the possession of property to the plaintiff. The 2 appellant/defendant preferred an appeal No. 43/2002, which was dismissed in default on 27.3.2006. The plaintiff filed execution proceeding No. 78/2002. The possession warrant was issued in that execution proceedings on 24.4.2009. The appellant/defendant, therefore, filed an application for condonation of delay caused in filing an appeal No. 43/2002 in the Court of District Judge, Dhule on 13.1.2009. It has been alleged in paras 8 to 17 in the application, seeking condonation of delay, as under :- "8. The plaintiff has filed the Regular Darkhast 78 of 2002 before the Joint Civil Judge, Junior Division, Dhule for execution on 9.8.2002. 9. After dismissal of the appeal the defendant had sought adjournment on various grounds stated in the applications. The plaintiff had filed the application for possession of the alleged encroached premises and the executing court had issued the warrant under order 21 rule 35 of Civil Procedure Code. The belief had submitted a report the alleged encroachment does not tally the said encroachment stated in the decree and thereby stated inability for execution. 10. Thereafter the plaintiff had taken several adjournment and submitted the application below Exhibit 48 and 56, the defendant had filed his say below Exhibit 56. The applications were heard and the executing court passed an order for removal of the alleged encroachment 2x5.30 meter. 11. The order passed by the executing court is illegal, unauthorised. The executing court is not giving proper and sufficient time to challenge the orders and to get the interim order and trying to execute the decree anyhow. 12. The advocate of the petitioner was intimated time to time to file restoration application or suitable proceeding to restore the appeal, but 3 because of his brothers heath, personal problems, busy in several others matters could not file the restoration application. 13. Meanwhile the wife of the petitioner was ill for several months who is died on 5.5.2007, the other problems in respect of marriage of son, marital relations of the sons were and is going on physical health of the petitioner, could approach and file the restoration application through the same advocate or through other advocate. Because of the several problems the heath and mental condition of the petitioner was disturbed. 14. The judgment and decree passed by the lower court is illegal, without jurisdiction, against the settled principle of law and without application of mind to the fact and evidence on record and the petitioner will suffer irreparable loss if the order of dismiss for default is not set aside and quashed, the defendants has great hopes to succeed in the appeal and the present application. 15. The defendant is continuously in possession of the suit premises till today and honourable court had also granted interim order in favour of the defendant in the appeal. 16. If the implementation and operation of the judgment and decree passed by the lower court in Regular Civil Suit No. 116 of 1998 and proceeding in Regular Darkhast 78 of 2002, pending before the Joint Civil Judge, Junior Division, Dhule is not stayed the defendant will suffer irreparable loss. The plaintiff has filed execution proceeding, Regular Darkhast 78 of 2002 which is kept on 13.1.2009 and if it is executed the defendant will suffer irreparable loss, which will lead to complications in the matter. The petitioner-defendant has prima-facie case, balance of convenience is also in their favour. 17. The restoration application could not be filed because of above mentioned reasons. Hence, there is delay in filing the present restoration application for setting aside the dismissal order, hence, filing the separate delay application condonation." 4 3. The learned District Judge decided the said Civil Misc. Application No. 11/2009 on 16.3.2009 filed by the appellant/ defendant and dismissed the same. It has recorded a finding that the applicant, time and again, intimated the advocate to move an application for restoration, but he failed to do so and despite lapse of more than two and half years, no steps are taken to file an application for restoration. The trial Court has recorded a finding that the applicant is negligent, careless and therefore, the alleged ground, cannot be said to be sufficient cause to condone the delay. So far as the grounds regarding the illness and death of concerned persons were concerned, it was recorded that the wife of the applicant died on 5.5.2007 and the appeal was dismissed on 27.3.2006 i.e. about a year before the death. It has further recorded a finding that there has no connectivity with the death of applicant's wife and the period within which the restoration application is filed. It has further recorded a finding that so far as the ground of illness of advocate's brother and wife of applicant was concerned, no documents were placed on record. It has further recorded a finding that the advocate was busy in other matters, that could not be a ground to condone the delay. The application is, therefore, dismissed by an order dated 16.3.2009 which is the subject matter of this appeal. 4. The contents of the application which are reproduced above clearly shows that the appellant/defendant was well aware of the 5 dismissal of the appeal No. 43/2002 of 27.3.2006. The reasons put forth by the appellant are not accepted by the trial Court. The decree is for removal of encroachment, which is sought to be executed. Shri. Kulkarni, the learned counsel for the original plaintiff, has pointed out para 19 of the judgment of the trial Court passed in Regular Civil Suit No. 116/98, delivered on 18th of December 2001, which makes reference to 24 adjournments sought by the defendant to produce the documents and to examine the witnesses and ultimately the request was rejected for seeking adjournments. Similarly, the appellate Court in Appeal No. 43/2002 had passed an order dated 27.3.2006 and on the last occasion itself the ultimatum was given to the appellant as several adjournments were sought. In view of all this material, it is apparent that the appellant/original defendant was negligent in prosecuting the appeal. The application for condonation of delay is not bona fide and it is directed to create hurdles in the execution proceedings. The appellate Court, therefore, rightly dismissed the same. 6. In view of this, I do not find any reason to interfere in the order passed by the trial Court. Hence, the appeal is dismissed. [ R.K. DESHPANDE, J. ] ssc/ao41.09