(1) CA. 2199.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 2199 OF 2009 IN SECOND APPEAL (ST.) NO. 3106 OF 2009 Suryabhan S/o Yeshwanta Kale died through LRs. and ors. .. Applicants VERSUS Malanbai Ramrao Pawar and ors. .. Respondents Mr. B.N. Patil, Advocate for the applicants-appellants None present for respondent nos. 1 and 2 though served C. A. stands abated against Respondent no.3 vide order dated 9.4.2009 CORAM : A.V. NIRGUDE, J. DATED : 22ND SEPTEMBER, 2009 P.C.:- 1] The application seeks condonation of delay of almost 10 years in filing of the second appeal. The respondent no.1 was the original plaintiff, who filed the suit for declaration that the sale deeds, which she and the respondent no.4 had executed in favour of the appellants and others were obtained fraudulently and she sought partition and possession. The trial Court accepted the defence of the defendants-purchasers holding that the case of fraud was not proved. The appellate Court however, held to the contrary. On both the occasions, the appellants were not present before the Courts. During the pendency of the appeal the original plaintiff-the (2) CA. 2199.2009 respondent no.1- settled the dispute as against the other defendants/purchasers though they had initially opposed the suit etc., Thus the appellants alone remained the opposite party when the first appeal was heard. As said above, at that time, the appellants were not present before the first appellate Court. The appellants it is said were not aware of the outcome of the appeal. The appeal was allowed in 1999. The appellants were in possession and they learnt about the impugned judgment and decree only when they were served with notices of execution almost nine years after the judgment of the first appellate Court. Thereafter, they learnt about the judgment etc. Despite of the notices sent to the original plaintiff-respondent no.1, none came before the Court. 2] The delay is of 9 years and 278 days and yet the respondent no.1-original plaintiff has not taken steps to oppose the application. In view of the pecularity of the facts of the case and the fact that the appellants never personally contested the litigation, I think they deserve the opportunity to contest the litigation. The delay deserves to be condoned. Delay is condoned. Application is allowed, as prayed for. Sd/- (A.V. NIRGUDE, J.) arp