1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 401 of 2008 Narayan Krishnaji Bhutkar (decd) by LRs Shashikant N. Bhutkar & ors .. Petitioners versus Keshav Tukaram Veerkar .. Respondent ... Mr.P.K. Dhakephalkar i/b S.R. Ganbavale for the petitioners. Mr.R.A. Thorat and Mr.P.B. Gujar for respondent. CORAM : A.M.KHANWILKAR, J DATED : 25th August 2008 P.C.: 1. Heard counsel for the parties. 2. In my opinion, the conclusion reached by the courts below in rejecting the application preferred by the petitioner is unexceptionable. Counsel for the petitioner would contend that the court below has 2 taken into account the material which was not part of the record. On the basis of that material, ultimate conclusion has been reached atleast by the appellate court. The argument is though attractive, at the first blush will have to be stated to be rejected. 3. Both the courts below have in the first place found as of fact that the petitioner has not established his plea by producing any contemporaneous evidence to the effect that he was suffering from mental illness which prevented him to participate in the proceedings at the appropriate stage or for that matter to move the court for setting aside the ex-parte decree as the case may be. The lower court has clearly found that there was ample material on record and the circumstances to establish that the petitioner was sound and attending to all other routine affairs including that he was serving as teacher in Saraswati High School during the relevant period from 1968 to 1978. That concurrent finding of fact cannot be overturned by this court in absence of the finding being manifestly wrong or error apparent on face of the record. That finding would bind this court. 4. In my opinion, in view of this finding, it would necessarily follow that no sufficient cause was 3 made out by the petitioner for showing any indulgence. The record clearly indicates that the petitioner had appeared during the trial after service of writ of summons and prayed for time to file written statement. That extension was granted for more than one occasion. The petitioner thereafter remained absent during the trial as well when "No written statement" order was passed and the trial court proceeded to decree the suit ex-parte. Significantly, in the execution proceedings founded on the said decree, the sale deed has been executed in favour of the respondent by the trial court on 7th March 1973. The petitioner however took out the present application only on 30th August 1984 without formally praying for condonation of delay nor the petitioner has set out any cause as to what prevented the petitioner to take recourse to that remedy for almost over 12 years. That is the fact recorded by the appellate court as well. 5. In the circumstances, no interference in exercise of writ jurisdiction under Article 227 of the Constitution of India is warranted. Dismissed. (A.M.KHANWILKAR, J)