1 S.A. 350/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 350/2011 1 Sindhu Bhiva Rasal, (Since deceased) through her L.Rs. 1A Bhiva Deoram Rasal, Age : 58 years, Occu. Agri. 1B Shankar Bhiva Rasal, Age : 0 years, Occu. Agril. 1C Shivaji Bhiva Rasal, Age : 28 years, Occu. Agri. 1D Sahebrao Bhiva Rasal, Age : 24 years, Occu. Agri. All R/o Morwadi (Nighoj), Tq. Parner, Dist. Ahmednagar. 1E Sau. Surekha Ramdas Khamkar, Age : 22 years, Occu. Household and Agri., R/o At Post Panoli, Tq. Parner, Dist. Ahmednagar. 2 Suman Namdeo Rasal, Age : 42 years, Occu. Agri., R/o Morwadi, Nighoj, Tq. Parner, Dist. Ahmednagar. ....Appellants. (Ori. Deft. Nos. 2 & 3) VERSUS 1 Smt. Janabai Sukhdeo Londhe, Age : 64 years, Occu. Agri., R/o Morwadi (Nighoj), Tq. Parner, Dist. Ahmednagar. 2 Shankar Yesu Kolhe, (Since deceased) through his L.Rs. 2A Dnyandeo Shankar Kolhe, Age : 65 years, Occu. Pensioner, R/o At Shivadi, Post. Nighoj, Tq. Parner, Dist. Ahmednagar. 2B Dashrath Shankar Kolhe, Age : 60 years, Occu. Agri., R/o At Post Loni 2 S.A. 350/2011 Haweli, Tq. Parner, Dist. Ahmednagar. 2C Vishnu Shankar Kolhe, Age : 64 years, Occu. Agri. 2D Popat Shankar Kolhe, Age : 60 years, Occu. Agri. Resp. Nos. 2C and 2D R/o At Shivadi, Post. Nighoj, Tq. Parner, Dist. Ahmednagar. 2E Anjana Vinayak Sondkar, Age : 55 years, Occu. Household & Agri., R/o Loni Haweli, Tq. Parner Dist. Ahmednagar. 3 The Taluka Inspector of Land Records, Parner, Tq. Parner, Dist. Ahmednagar. 4 The Tahsildar, Parner, Tq. Parner, Dist. Ahmednagar. 5 The Collector, Ahmednagar, Dist. Ahmednagar. ...Respondents. Mr. R.N. Dhorde, Advocate for the appellants. Mr. R.R. Mantri h/f Mr. P.S. Pawar, Advocate for respondent No.1. CORAM : A.V. NIRGUDE, J. DATED : 3rd August, 2011. ORAL JUDGMENT: 1. Heard. 2. The following substantial question of law arose in this appeal. “Whether the impugned judgment and order is perverse ?” 3. Admit. 4. By consent of learned counsel for both the sides, the appeal is taken up for final hearing. 5. This appeal is filed against an order dated 04/07/2011 passed 3 S.A. 350/2011 by learned Principal District Judge, Ahmednagar in Miscellaneous Civil Application No. 71/2010. This application was filed for condonation of delay of over 5000 days in filing of first appeal against the judgment and decree dated 25/04/1994 in Regular Civil Suit No. 228/1990. The original appellants No.1 and 2 Sindhu Bhiva Rasal and Suman Namdeo Rasal were the defendants No.2 and 3 in R.C.S. No. 228/1990. The present respondents No.1 had filed this suit for partition of certain agricultural land. It was her case that she has half share in the suit property which was in possession of the original appellants No.1 and 2. The record of Regular Civil Suit No. 228/1990 shows that summons of the suit was served on the original appellants No.1 and 2 but they did not appear before Court to contest the suit. Despite this, the suit remained pending for four years and ultimately it was decreed ex-parte. 6. Thereafter, the record shows that respondent No.1 filed Regular Darkhast No. 6/1995 in the Court of Civil Judge, (Junior Division), Parner against the original appellants No.1 and 2 and another for execution of the decree passed in Regular Civil Suit No. 228/1990. On the very first day -the record shows- the learned judge of the execution Court directed issuance of notices to the Judgment Debtors. But the record further shows that respondent No.1 Decree holder did not deposit process fee for next number of years. The record further shows that the execution Court then mentioned that the Decree holder did not deposit measurement charges. This also went on for number of years and ultimately on 01/09/2004, the learned judge of the execution Court suddenly passed an order on the Darkhast, sending it for execution to the Collector. This order was 4 S.A. 350/2011 passed almost after ten years from the date of filing of the Darkhast. The learned judge of the execution Court did not care to call judgment debtors before him, so that he could pass this order in their presence. Although there was no need for the execution Court to issue notice to the judgment debtors in a execution proceeding of this nature but since an order to that effect was passed in 1994 and since the decree holder had failed to deposit requisite charges for issuance of notice, it was incumbent upon the learned judge of the execution Court to insist on presence of the judgment debtors before him, so that he could have passed necessary orders in the Darkhast. 7. After the decree was sent to the Collector for quite some time and for number of years, nothing happened and some time in February 2010, the present appellants who are legal representatives of the original appellants No.1 and 2 (original defendants No.2 and 3) in Regular Civil Suit No. 228/1990, received notice from Tahsildar in respect of division of the land, they immediately filed first appeal challenging the ex-parte decree in Regular Civil Suit No. 228/1990. 8. Since the appeal was hopelessly time barred, they moved the present application. The learned judge held that the present appellants or their predecessor, the original appellants No.1 and 2 had ample opportunity to defend the suit and since they were served with suit summons, they could not deny the knowledge of the litigation. Indeed, if the summons were served on the original appellants No.1 and 2, they ought to have contested the suit. The learned judge had not erred in disbelieving the case of original appellant No.2, who said that she had not received suit summons in the year 1990. None the less, what is really pertinent in this case is, the delay that is caused 5 S.A. 350/2011 due to the pendency of the regular darkhast No. 06/1995. The learned judge did not utter a word about the events that took place in proceedings of execution proceeding No. 06/1995. I have narrated above as to what had happened during those ten years. I have also highlighted need to secure presence of the original judgment debtors No.1 and 2 before execution Court before decree could have been sent for execution to the Collector. This aspect of the matter is completely ignored by the learned judge and that is why I am holding that the order which he passed ultimately, is perverse. Had the execution Court issued and served notices on the original judgment debtors No. 1 and 2 immediately after filing of Execution Petition No. 06/1995, probably they could have filed the appeal against the impugned decree in Regular Civil Suit No. 228/1990. This possibility is also completely ignored by the learned judge of the lower Court. The learned advocate appearing for the appellants, fairly conceded that his clients could not have filed a fresh suit for setting aside of the impugned decree passed in Regular Civil Suit No. 228/1990. He said that, his clients would withdraw that suit. In view of this, the appeal deserves to be allowed. ORDER The appeal is allowed. a) The impugned order dated 04/07/2011 passed by learned Principal District Judge, Ahmednagar in Miscellaneous Civil Application No. 71/2010 is set aside. b) The application seeking the condonation of delay is also allowed. 6 S.A. 350/2011 c) The learned judge of the first appellate Court shall decide the appeal on merits. d) I am also directing the stay to the execution of the impugned decree until the disposal of the appeal. e) Civil Application No. 8917/2011 stands disposed of. [A.V. NIRGUDE,J.] ts k/2011/August3/sa350.11/ok