1 sa83.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD SECOND APPEAL NO. 83 OF 2011 WITH CIVIL APPLICATION NO. 2532 OF 2011 Raju s/o Jagannath Ghodke ...Appellant VERSUS Rukhminibai d/o Lamanrao Muley @ Rukhminibai w/o Mahadeo Dange through GPA Mahadeo Dada Dange & anr. ...Respondents ..... Shri B.A.Darak, advocate for the appellant/applicant ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 4 th March, 2011 PER COURT : 1 Heard Shri B.A.Darak, learned counsel for the appellant/applicant. 2 sa83.11 2 This Second Appeal has been preferred by the appellant (original defendant no.2), challenging the judgment and order, dated 2.2.2011, passed by the learned District Judge-3, Aurangabad, in M.A.R.J.I. No. 20 of 2011, thereby dismissing the said application preferred by the appellant for condonation of delay of 465 days. The parties hereinafter referred as per their original status i.e. 'defendant/appellant' and 'plaintiff/respondent'. 3 The plaintiff/respondent no.1 herein, namely, Rukminbai filed Regular Civil Suit No. 184 of 2005 before the learned Civil Judge, Junior Division, Gangapur for declaration and for recovery of possession against one Muktabai i.e. defendant no.1 and Raju Ghodke i.e. defendant no.2, who is appellant herein. Defendant no.1 Muktabai contested the said suit by filing the written statement. However, defendant no.2 i.e. appellant herein did not appear in the said suit in spite of service of summons, and therefore, said suit proceeded ex parte against him. 4 After considering the rival pleadings of the plaintiff and defendant no.1 and after assessing the evidence adduced and produced by the parties, the learned Trial Judge decreed the said 3 sa83.11 suit by judgment and decree, dated 31.7.2009. Being aggrieved by the said judgment and decree, defendant no.2 i .e. appellant herein preferred Regular Civil Appeal before the District Court, Aurangabad, but since there was delay of about 465 days, the appellant preferred M.A.R.J.I. No. 20 of 2011 for condonation of said delay along with the said appeal. The said application was contested by the parties. After considering the rival contentions, the learned District Judge-3, Aurangabad rejected the said application for condonation of delay by judgment and order dated 2.2.2011. Hence, being aggrieved and dissatisfied by the said judgment and order, defendant no.2 i.e. appellant herein has preferred the present appeal assailing the same. 5 It is material to note that the Trial Court has categorically observed in its judgment that although defendant no.2 i.e. appellant herein was duly served with the suit summons, he remained absent and did not participate in the proceedings of the suit, and therefore, suit proceeded ex parte. The First Appellate Court, after hearing the rival contentions, considered the issue that whether the applicant has shown that he was prevented from sufficient cause to prefer the appeal within time, and in the said context, considered the aspect that whether the suit summons was served upon the appellant herein 4 sa83.11 and it was found that defendant no.2 i.e. appellant herein was served with the suit summons properly, but in spite of that he did not appear before the Trial Court, and therefore, the First Appellate Court observed that the very claim of the applicant/appellant that he had no knowledge of proceeding is baseless and not sustainable in law, and consequently, came to the conclusion that the appellant herein had knowledge of the Civil Suit, but he allowed it to proceed ex parte and even after service of notice of execution proceeding, he kept quiet for more than five months, and therefore, there existed no sufficient cause for the applicant which prevented him from approaching the Court within time, and having the comprehensive view of the matter, the said reasoning cannot be faulted with. 6 Moreover, it is also pertinent to note that respondent no.1 has produced the certified copy of the sale deed on record before the First Appellate Court, which reflects that the present appellant has sold the interest in the property to one Amar Haribhau Ghule on 20.11.2007 itself, which clarifies the position that the appellant has no interest in the suit property. 7 In the circumstances, no substantial question of law could be formulated in this appeal and present Second Appeal lacks 5 sa83.11 merits, and therefore, same stands dismissed. In view of dismissal of Second Appeal, Civil Application does not survive, and hence, same stands disposed of accordingly. (SHRIHARI P. DAVARE, J.) dbm/sa83.11