1 29-cas-681-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.681 OF 2011 IN SECOND APPEAL (ST)NO.8523 OF 2011 Shri Namdev N. Powar .. Applicant V/s. Smt. Prafulla D. Mengane & Others .. Respondents. Mr. S. R. Ganbavale, for the Applicant. None for Respondents. CORAM : G.S.GODBOLE, J. DATE : 13th SEPTEMBER, 2011. P.C.: 1 Heard the learned Advocate for the Applicant. 2 This Civil Application seeks condonation of delay of 3 years and 310 days in filing Second Appeal. It is settled that length of time is immaterial and I, therefore, do not propose to go into the justification for delay or the length of delay as I am inclined to dismiss this Civil Application on other ground. 2 29-cas-681-2011.sxw 3 A perusal of the record shows that Appellant is original Plaintiff in Regular Civil Suit No.98 of 1998 which was dismissed by the learned Civil Judge, Junior Division, Gargoti on 30th October, 2003 and the Counter Claim filed by the heirs of the Defendant No.3 was decreed and Plaintiff was directed to execute the Sale Deed, after seeking necessary permission from the competent authority. On the failure of the Plaintiff to get such permission, heirs of the Defendant No.3 were granted liberty to get such permission and execute decree. Decree of permanent injunction was also granted against the Plaintiff. 4 Regular Civil Appeal No.507 of 2003 was filed by the Plaintiff which has been dismissed by learned 5th Ad­hoc Additional District Judge, Kolhapur on 17th January, 2006. The averments in paragraph 9 of the Civil Application itself shows that the Plaintiff in fact, accepted the decree and file application for getting permission from the Collector and Deputy Director of the Resettlement, Kolhapur on 12th March, 2006 which was decided on 11th June, 2010 and the permission was refused. The Appeal is, thereafter, filed on the ground that Respondents­ decree holders are trying to execute the decree contrary to the clause mentioned in the agreement dated 15th June, 1976. However, that can be a matter which can be raised before the Executing Court, if a case for that purpose is made out. That can't be a ground for entertaining the Second Appeal particularly when the 3 29-cas-681-2011.sxw decree had been accepted by the the Plaintiff. Apart from this, decree itself empowers the decree holders to file an application and the order refusing the permission can also be a subject matter of judicial review. 5 Hence, on the sole ground that the Plaintiff/ Appellant had accepted the decree, delay cannot be condoned. Civil Application is dismissed. (G.S.GODBOLE, J.)