1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR LETTERS PATENT APPEAL NO.120 of 2010 in W.P.NO.5659/09 (D) Rakesh Gopichand Tayal ..vs.. Krishna Damodhar Deshpande =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.R.R.Shrivastava, Adv. for the appellant. Mr.U.M.Aurangabadkar, Adv. for resp. C ORAM : J.P.DEVADHAR AND A.B.CHAUDHARI, JJ. DATED : 25th August, 2010. Heard. Admit. Taken-up for final disposal with the consent of learned counsel for the rival parties. Mr.Srivastava, learned counsel for the appellant, argued that the ex parte decree that was passed against the appellant itself is clearly faulty and no opportunity to defend the suit was even afforded to the appellant. In so far as the issue involved in the present appeal is concerned, Mr.Srivastava argued that the actual delay required to be explained was only of 350 days as rest of the period of 170 days was covered by the exemption under Section 14 of the Limitation Act, 1963. 2 Having heard learned counsel for the rival parties, we find that assuming that delay of 170 days is covered by exemption under Section 14 of the Limitation Act, rest of the period of 350 days in the matter of condonation of delay is a long period. The only explanation tendered by the appellant was that he was unaware of the proceedings and that is why said delay had occurred. We find that the learned Single Judge has recorded a finding of fact in that behalf, which, instead of repeating, we quote as under from the order made by the learned Single Judge. “With the assistance of both the learned counsel I have perused the papers. The fact shows that the ex parte decree was within the knowledge of the petitioner and he had therefore filed M.J.C.No. 60/2006. Dismissal for want of prosecution of that M.J.C., was not questioned and thereafter another M.J.C.vide 16/2007 was filed. That M.J.C. was within the knowledge of the petitioner and grievance that dismissal of latter M.J.C., was not informed to him, does not appear to be substantiated as the name of lawyer who represented the petitioner or who allegedly did not inform that dismissal is not disclosed. The M.J.C.No.16/2007 has been dismissed on 9.4.2007. In any case the execution proceeding vide S.D.No.164/2006 were going on 3 simultaneously and the present petitioner has moved an application therein on 18.12.2007 vide exhibit 21, which came to be dismissed on 11.2.2008. The sequence therefore clearly shows that petitioner has aware of all the developments and was watching the same and has taken appropriate steps to delay the disposal of the execution proceedings.” The aforesaid finding of fact has not been shown to be perverse and we have no reason to disturb the said finding of fact. In the result, we find no merit in the Letters Patent Appeal. It is dismissed. No costs. Mr.Srivastava, learned counsel for the appellant, prays for period of six months to vacate the premises in question which is opposed by Shri Aurangabadkar, learned counsel for the respondent, but he states that he would agree for three months extension. In view of the above, we make the following order. The appellant shall furnish an undertaking on affidavit to this court to vacate the premises in question after four months. The premises shall be vacated by 31st of December, 2010 which date shall be incorporated in undertaking on affidavit. Undertaking shall be filed within period of one week. JUDGE JUDGE. pzc 4