- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. NOTICE OF MOTION NO.1380 OF 2008 IN APPEAL (L) NO.51 OF 2008 ... Mrs.Zainab Feroz Mantri & Anr. ...Appellants v/s. Mubarakunnisa w/o Mahammed Naseem & ors. ...Respondents ... Mr.V.Mannadiar i/b Mannadiar & Co. for the Appellants. Mr.A.N.Maniyar for the Respondents. ... CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 1ST APRIL, 2009 - 2 - P.C.: 1. This Notice of Motion is taken out by the Defendants Nos.9 & 10 for condonation of delay in filing appeal challenging the exparte decree. The delay is more than two years. The reason given for not filing the written statement is that their advocate had died. Their advocate died in the year 1998-99. Exparte decree has been passed in the year 2005. No reason is given as to why when they knew in the year 1999 itself that their advocate has expired, they did not engage another advocate and file their written statement. In the affidavit in reply filed on behalf of the Plaintiffs, it is stated that before passing the decree, fresh notice was given to Defendants Nos.9 & 10. It is also stated that other Defendants had approached the Defendant No.10 and told him that the matter is before the Court for passing exparte decree and requested him to appear before the court, but he declined to appear. In the affidavit filed in support of the motion, statement is made that the Defendants Nos.9 & 10 became aware of the decree on 10-1-2008, but in the affidavit in - 3 - reply it is stated that when final decree proceedings were before the officer of this court, a notice of those proceedings were given to Defendants Nos.9 & 10 and they refused to accept and therefore, affidavit of service has been filed. The Defendants Nos.9 & 10 have not denied the averments made in the affidavit in reply by filing any further affidavit, though they have been served with the affidavit in reply in the year 2008 itself. In the face of the averments made in the affidavit in reply, which are uncontroverted, it is clear that the Defendants Nos.9 & 10 have come with the false case seeking condonation of delay. As the explanations given by the Defendants Nos. 9 and 10 for delay are found to be false, there is no question of condoning the delay. Notice of Motion is, therefore, disposed of. (D.K.DESHMUKH, J.) (A.A.SAYED, J.)