1 caf989-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL APPLICATION NO. 989 OF 2011 IN FIRST APPEAL ST. NO. 7455 OF 2011 Ganabhau Bhikaji Pate & Anr. .. Applicants V/s. Ramchandra Dhondiba Datkhile ..Respondent .... Mr. Pravartak Phatak i/b. Mr. Uady P. Warunjikar for the applicants. Mr. Anoshak Daver and Mr. Sayeed Y. Mulani i/b/. Mulani & Co. for the respondent. .... CORAM : A.S.OKA, J. DATE : JULY 6, 2011 P.C.: Heard the learned counsel appearing for the applicants and the learned counsel appearing for the respondent. This is an application for condonation of delay of 396 days in preferring an Appeal against the decree for possession of immovable property. According to the case of the applicants, they were served with notice of execution application in January 2011. Till then, they were not aware of the impugned decree. On 7th February, 2011, an application for obtaining certified copy was made. The certified copy was ready on 5th March, 2011 and the present application for condonation of delay and Appeal have been filed on 17th March, 2011. 2 caf989-11 2. The application is opposed by the respondent by filing a reply. In the reply, it is contended that the advocate appearing for the applicants filed “no instruction pursis” before the trial Court stating that he was intending to withdraw his Vakalatnama. On the basis of the said pursis, trial Court issued a fresh summons dated 21st March, 2009. It is contended that though the said summons was served on 25th March, 2009, the applicants did not appear and, therefore, the Court proceeded to pass a decree. Reliance is placed on letter dated 11th June, 2009 received by the respondent from the Senior Superintendent of Post, Pune city stating that the packet was delivered on 25th March, 2009. Another contention raised is that the applicants are residing on either side of the residence of the respondent. 3. I have considered the submissions. I have perused the Roznama of the proceedings of the suit annexed to the reply. It is pertinent to note that on the no instructions pursis filed by the advocate appearing for the applicants, the only order recorded is “filed”. Under Rule 8(2) of the Rules framed under Section 34 of the Advocates Act, 1961 and under Sub Rule 2 of Rule 4 of Order III of the Code of Civil Procedure, 1908, an appointment of an Advocate continues until determined with the leave of the Court. 3 caf989-11 There is no specific orders passed by the trial Court granting leave to the advocate to withdraw the Vakalatnama. Moreover, a fresh summons issued by the trial Court was taken humdast by the respondent and was sent by registered post A.D. There is nothing in the Roznama to show that the fresh summons was attempted to served through Court Bailiff. Roznama dated 24th April, 2009 records that the respondent filed on record receipt issued of the dispatch of the summons by registered post A. D. On the next date i.e. on 10th June, 2009, no cross order was passed by the trial Court. The respondent is relying upon communications dated 11th June, 2009 issued by the senior superintendent of posts, Pune city to the respondent stating that registered packet Nos.9176 and 9177 were delivered on 25th March, 2009. It is pertinent to note that the said letters are not addressed to any Court official, but, the same are addressed to the respondent. Moreover, admittedly, the said letters are not placed on record of the trial Court. There is no affidavit of service filed on record of the suit. Thus, it appears that even before verifying whether the fresh summons were duly served, the trial Court proceeded to decree the suit. 4. Another contention raised by the respondent is that the applicants are residing on either side of his residence. Even assuming that this fact is correct, it is not a sufficient to come to a 4 caf989-11 conclusion that the applicants were aware of the decree. The cause title of Civil Application shows that the applicants are residents of Narayangaon, Taluka Junnar, Pune and the respondents are resident of Chinchwad, Pune. 5. Thus, the case made out by the applicants that the applicants were not aware till January 2011 of the impugned decree will have to be accepted. Hence, sufficient cause is made out. Rule made absolute in terms of prayer clause (a). Appeal shall be placed for admission as per the date fixed by the C.M.I.S. 6. Decree shall not be executed for a period of four weeks from today. (A.S.OKA, J.)