1 WP No.112/2003 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 112 OF 2003 Shri Narayan Dnyanu Sutar .... Petitioners (deceased) thru’ Heirs Saraswati Narayan Sutar Vs. Shri Baburao Dnyanu Sutar .... Respondents & Ors. Mrs. Shakuntala Mudbidri, Advocate for petitioners. Mr. S.M. Kamble, Advocate for respondents. Coram : Smt. R.P.SondurBaldota, J. Date : 20th September, 2010 JUDGMENT : 1. The petition is filed by heirs and legal representatives of one Narayan Dnyanu Sutar, who was defendant no.1 in Regular Civil Suit No. 39 of 1990 filed by respondents no. 1 to 5 for partition and separate possession of joint family property. The suit was decreed on 9th March 1993. The respondents thereafter took out Execution Proceedings and the notice of execution was served upon Narayan Dnyanu Sutar on 18th December 1995. Thereafter on 19th February 1996, he filed an appeal against exparte decree along with an application for condonation of delay. That application came to be rejected by the order dated 9th 2 WP No.112/2003 February 2001. This order is sought to be quashed on the ground that the same is unjust and unreasonable. During the pendency of petition, Narayan died. The petition is continued by his heirs. 2. The application for condonation of delay as filed originally stated following cause as sufficient for condonation of delay. (2) The applicant was not aware of the decree under appeal “ and when the Applicant received the notice of execution proceeding on 18-12-1995, he inquired about the decree and made an application for it’s certified copy on 11-1-1996 and the same is received on 19-2-1996. As such after the knowledge of the decree, the Applicant has not made any delay or neglect in filing the appeal. Four years after it’s filing i.e. on 11th March 2000, the application was amended to add one more cause. The additional ground reads as follows : (2A) Since the applicant, Shri Narayan Sutar was ill on 18-12-1995 and was admitted in the hospital at Kodoli, he could not go to his advocate or to Panhala. After discharge from the hospital, he was advised to take rest for two months and hence he could not apply for certified copy of the same in time.” 3. The respondents in their reply to the application state that the suit summons had been duly served upon Narayan Sutar. There is a report to that effect made by the bailiff. This statement as regards service of summons was not disputed by Narayan. He however claimed that he was not aware of the decree passed in the suit. The reason therefor is not stated in the application. On receipt of notice of 3 WP No.112/2003 execution, he claims to have made enquiry about the decree and applied for certified copy only on 11th January 1996. The delay in applying for the certified copy was not explained originally. Apparently on realisation of this folly, the application for amendment was made to state that he took ill on the very day of receipt of execution notice. The amendment however can be of no help since the averments at paragraph 2 and 2-A are seen to be inconsistent. On the one hand, he claims to have made enquiry about the decree on receipt of notice of execution proceedings on 18th December 1995 and on the other hand, he claims to have fallen sick on the very day and admitted to the hospital. As per the application, he applied for certified copy of the impugned judgment and decree on 11th January 1996, whereas the copy produced by him showed that the application was made on 12th January 1996. The averments added to the application by amendment, create an impression that Narayan could not apply for certified copy till expiry of two months after his discharge from the hospital. However, the application was in fact made either on 11th January 1996 or on 12th January 1996. 4. Narayan had examined himself and Dr. Mahapure in whose hospital he was allegedly admitted, whereas the respondents examined one of them in support of their contention. The respondents alleged in 4 WP No.112/2003 the reply that the medical certificate produced by Narayan is a false certificate. He could get the certificate only because Dr. Mahapure is a professional colleague of his son. 5. On appreciation of the evidence and the pleadings, the lower appellant court held that the probability of obtaining medical certificate from Dr.Mahapure at the instance of the son of the applicant, who is also the medical practitioner cannot be ruled out. Narayan also did not adduce any evidence to show that the bailiff had not served summons on him or that had obtained signature of another person in Marathi script. For these reasons and also taking into consideration the incorrect statements made in the application, the lower appellate court rejected the same. The order in my view is a correct and reasonable order. There is nothing to show that Narayan was prevented from sufficient cause in not preferring the appeal in time. Hence, the petition is dismissed. (Smt. R.P.SondurBaldota, J)