1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Civil Application (caf) No. 78 of 2011 (In First Appeal St. No. 6372/10) Sau. Rukhma w/o Anantrao Tonge ...Versus... Manohar s/o Pandurang Murme & anr. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. V.A. Dawas Advocate for applicant. Mr. P.D. Randive Advocate for Res. no.1. Mr. A.Z. Jibhkate Advocate for Res. no.2. …. CORAM : A.B. CHAUDHARI, J. RESERVED On : 28.09.2011. PRONOUNCED ON : 07.10.2011. Heard. This is an application for condontion of delay of 1592 days in filing the first appeal. The appellant/applicant who was original defendant no.2 in Special Civil Suit No. 278 of 2001 had purchased the suit property during the pendency of the suit. She appeared in the suit and filed her written statement but thereafter never attended the trial Court which passed the judgment and decree on 26.8.2005 decreeing the suit in favour of present respondent no.1 for specific performance of 2 contract in respect of the suit property in relation to the agreement entered into by original defendant no.1 with the plaintiff. 2. In support of the application, learned counsel for the applicant vehemently argued that original defendant no.1 had filed appeal against the said judgment and decree dated 26.8.2005, namely F.A. No. 13 of 2006, which was admitted and this appellant was a party to the said appeal. Notice of the appeal was received and the appellant was told that she was a formal party to the said appeal and there was no need for her to appear in the appeal nor the counsel even suggested her to challenge the said judgment, though her sale-deed was declared as null and void in the said judgment of dated 26.8.2005. Learned counsel then argued that she was never aware that in the decree against her, her sale-deed dated 23.10.2001 was declared as null and void. She came to know for the first time on 16.3.2010 when she received a notice from Talathi of Kuhi that the sale-deed was executed in favour of respondent no.1 and hence the revenue records were being changed. According to the learned counsel these are the good and sufficient reasons for condoning the delay. 3. Per contra, learned counsel for the respondents, vehemently opposed the application and argued that as a matter of fact the appellant was added as a party to the suit as defendant no.2 because she purchased the suit 3 property during the pendency of the suit. She did appear in the trial court and filed her written statement but thereafter she never attended the Court. The sale-deed in favour of the appellant was declared as null and void by the trial Court. It is high time that after the litigation has come to an end, the present appeal has been filed by the appellant. In reply, learned counsel for the respondents further argued that F.A. NO. 13 of 2006 was withdrawn in collusion with respondent no.2 when it was admitted and awaiting final hearing and that is why the appellant came to know about the fraud played on her by collusion. Hence, she should be allowed to prosecute her appeal on merits. 4. I have heard learned counsel for the parties at length on several occasions and I had asked the counsel for the parties repeatedly to settle the matter because the counsel for respondent no.1 made a categorical statement that his client was ready to pay back the amount of consideration received by her from the appellant for the sale-deed dated 23.10.2001 in her favour. Despite this Court's repeated efforts, the appellant finally reported to her counsel that she is not ready to take back her money which she spent for obtaining the sale-deed and thus this court is required to decide the present application. 5. After having heard learned counsel for 4 rival parties, at the outset, I find that the appellant did not at all contest the suit in the trial Court after filing written statement. After she was joined as party to the suit she very well knew that she had purchased the property lis pendens and, therefore, there is every likelihood of her sale-deed being declared as null and void. However, she did not bother to attend the trial Court at all and allowed her sale-deed to be declared as null and void. Even though the Court had declared her sale-deed as null and void, she did not prefer First Appeal. Her stand that respondent no.2 had filed First Appeal in this Court and was admitted to which she was a party and therefore she did not file the appeal is wholly misconceived. None prevented her from filing the appeal and she had a reason to do so because after the decree was passed by the trial Court, she had a knowledge that her sale- deed was declared as null and void. She received the memo of appeal in F.A. No. 13 of 2006 in which notice was admittedly received by her in 2006 itself. She also must have come to know that in the appeal preferred by respondent no.1 the challenge was limited to her grievance and the appellant ought to have been vigilant to protect her own civil rights. Withdrawal of F.A. No. 13 of 2006 by respondent no.1 was her choice and it was the right of respondent no.1 to withdraw her appeal. It appears that the appellant did not remain present in this Court 5 when the appeal was withdrawn. It further appears that merely because the said First Appeal was withdrawn from this Court the appellant thought of filing of this appeal. In my opinion, these reasons, therefore, clearly demonstrate a case of blowing hot and cold. There are no grounds muchless grounds for condoning the huge delay of 1592 days. It is unfortunate that the appellant who was offered refund of entire consideration to her, refused to accept the same. To sum up, this Court has no alternative in the above fact situation. Hence, CAF 78 of 2011 for condonation of delay is dismissed. 6. In view of dismissal of application for condonation of delay, F.A. St.No. 6372/10 is also dismissed. Judge /TA/