1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CA NO. 8891 OF 2008 IN FIRST APPEAL ST. NO. 17891 OF 2008 (Bapurao Damaji Bhongle vs. Mahadeorao Champatrao Varatkar) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. MARCH 25, 2009. Heard Shri Potbhare, learned counsel for the applicant. The prayer by the defendant in suit for specific performance is to condone delay of 864 days. In application, it is stated that he was dismissed from service and because of departmental enquiry, he could not pay attention to suit and after dismissal he had no means and hence the suit went unattended. It is further stated that in execution, application was moved on 12.12.2007 praying for rejection of application of decree holder/ plaintiff and that application came to be rejected on 23.7.2008 and thereafter the present proceedings have been filed. In additional affidavit it is stated that one relative Shri Deotale, Advocate was helping the applicant in opposing the execution proceedings and he did not charge anything from the applicant. Shri Thakur, learned counsel for the 2 respondent / plaintiff has pointed out that the dismissal from service is of the year 2004 and the judgment and decree is delivered by the trial court on 5.4.2006. In execution, the applicant/ defendant appeared through advocate and raised various objections but never expressed his desire to challenge the judgment and decree in appeal. He states that executing Court has also recorded that the applicant/ judgment debtor was only interested in delaying the execution. I have perused the papers with the assistance of both the learned counsel and I find that the dismissal from service is on 15.12.2004 and suit was filed on 13.10.2003. The departmental enquiry was before dismissal and as such the departmental proceedings cannot be a reason for not prosecuting the Civil Suit. The Departmental Appeal was also dismissed on 7.1.2005. The defendant also filed his evidence on oath in examination-in-chief on 8.3.2006 and then it appears that he did not participate in the proceedings. Though it is mentioned that he was in disturbed mind at that time, it is apparent that he was not aware of the judgment and decree and from paras 4 & 5, it appears that effort is to make out the case that he got the knowledge of case on 12.12.2007. 3 The reply affidavit filed by the respondent/ plaintiff shows that after the decree, a legal notice was served upon the judgment debtor and then execution was filed on 19.7.2006. On 6.12.2006, present judgment debtor appeared in those proceedings and opposed the application moved by the decree holder, seeking certain directions. Thus, the reason put forth that he got the knowledge of execution in December 2007 is, therefore, incorrect. The relative advocate has not filed any affidavit on record and it is not understood why the applicant could not point out his desire to challenge the impugned judgment and decree to the Executing Court and seek time for that purpose. He also could not explain as to why he could not approach the legal aid services authorities or could not filed proceedings as indigent person. In the circumstances, taking overall view of the matter, I do not find that the application as moved is bonafide. The same is, therefore, rejected. JUDGE *GS.