(1) SA. 245.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 245 OF 2010 Datta S/o Govind Tidke and others .. Appellants VERSUS Kalawatibai w/o Yadav Tidke and others .. Respondents WITH CIVIL APPLICATION NO. 3023 OF 2010 IN SECOND APPEAL NO. 245 OF 2010 Datta S/o Govind Tidke and others .. Applicant VERSUS Kalawatibai w/o Yadav Tidke and others .. Respondents Mr. P.V. Mandlik, Sr. Advocate h/f. Mr. Amol Gandhi, Advocate for the Appellants/Applicants Ms.Maya Jamdhade, Advocate h/f. Mr. N.R. Jamdhade, Advocate for respondent no.1 ... CORAM : K.U. CHANDIWAL, J. DATED : 26TH APRIL, 2010 PER COURT:­ 1] Heard both sides. Rejection of RJE 91 of 2003 by the Adhoc District Judge­3, Nanded dated 27.11.2006 is questioned in the Second Appeal by the original defendants (judgment debtors). (2) SA. 245.2010 2] The admitted position is Regular Civil Suit no. 593 of 1990 for partition and possession was filed by the plaintiffs. It was decreed on 31.12.1991. It was challenged by the present appellants before the District Judge, Nanded in Regular Civil Appeal no. 143 of 1992 and by order dated 4.2.1997 the decree of partition was modified. There is no Second Appeal challenging the findings recorded in Regular Civil Suit no. 593 of 1990 or Regular Civil Appeal no. 143 of 1992 from the original defendants. 3] A Commissioner was appointed for partitioning the immovable property, the dwelling house. The report of the Commissioner is at Exhibit 32 dated 3.2.1999. He has stated, the house property due to peculiar nature is not divisible and could not be so partitioned and consequently he has assessed the valuation as was available with the Registrar of Registration of the document which was Rs.21,000/­. Having calculated the respective shares, the learned Commissioner informed the Court about the eligibility of the appellants in the event of avoidance of the partition to Rs.1400/­ each. The Court having gone through the Commissioner's report has passed the final decree. (3) SA. 245.2010 4] In the meantime there was already Regular Civil Appeal no.115 of 2003 moved by the appellants herein challenging the order of final decree dated 16.4.1999 which was also held not tenable by order dated 4.8.2003. 5] The appellant by R.J.E. 91 of 2003, has requested to entertain the appeal by condoning the delay of 1555 days against the order passed in the Regular Darkhast. The learned First Appellate Court, found on analysis of the evidence in the Regular Darkhast proceedings, that to the knowledge of the appellants, the Commissioner was appointed. The Commissioner had visited the house for measurement. The appellant no.1 Datta has deposed in his cross­ examination about filing Regular Civil Appeal no. 115 of 2003 however, pleaded ignorance about it's dismissal on 20.8.2003. He admits that there was Court Commissioner who collected measurement of the house and he has in turn informed his Advocate. He had no grievance about the measurement done by the Court Commissioner. Appellant no.3 Bhagabai informs the Court that she had not allowed the Court Commissioner to measure the property as she did not want measurement of the house. The appellant no.2 has accepted that she has come to the Court for the first time, she did not engage Advocate nor objected to the causing of the measurement. (4) SA. 245.2010 6] The first appellate Court found, on crystallising the evidence, that the appellants themselves are not legally supporting their case for condonation of delay. The period of limitation, according to the first appellate Court, began from the date of the order and not from the date of the the said knowledge. It was found that Regular Civil Appeal no. 143 of 1992 was decided on 4.2.1997 by the appellate Court, they were naturally having the knowledge of the limitation. Regular Darkhast no. 39 of 2000 was rejected by the Court as per exhibit 13. The Court had passed orders against the present appellants based on the report of the Commissioner exhibit 32. In the scenario, the learned Judge could not see the sufficiency of the ground to agitate the contention coined by the appellants herein. The settled position of law is, the Courts should be pragmatic and should not have pedantic approach, however, the laxity demonstrated by the appellants leans to inform that they are bent upon to challenge the decree on all possible counts and to drag it's execution to avoid it's fruits to the decree holder. This is not permissible and the Court would not countenance such approach. The pedantic approach by itself does not mean to allow the litigant to keep the litigation alive for generations together. (5) SA. 245.2010 7] The Second Appeal does not project any substantial question of law, dismissed with costs. 8] Heard. Interim protection in favour of the appellants is extended till 16.07.2010. 9] Civil Application no. 3023 of 2010 also stands disposed of. Sd/­ (K.U. CHANDIWAL, J.) arp