-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. C.A.NO. 9197/2008 IN F.A.ST.NO.18453/2008 Ramchandra Shripath Bawne - versus- Dashrath Govindrao Samarit ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : FEBRUARY 2, 2009. Heard Shri C.V. Kale, Advocate for applicant and Shri S.N. Bhattad, Advocate for respondent. Prayer is to condone delay of 678 days in filing First Appeal. Reason for not appearing in Special Civil Suit No. 759/2005 is that suit was fixed on 4.10.2005 and R.P.A.D. notice was received by the applicant on 4.10.2005. He contacted Advocate Shri Gaikwad, and said Advocate Shri Gaikwad informed him that he would get other notice for appearance, from the Court. It is further mentioned the soon thereafter Advocate Shri Gaikwad, stopped practice and joined judiciary, and went for training in September, 2006. It is contended that because of the said advise the applicant was prevented from taking -2- part in the suit. The 4th Joint Civil Judge, Senior Division, Nagpur has actually proceeded exparte on 3.7.2006 i.e. it has waited from 4.10.2005 onwards till that date, for filing of appearance by the present applicant. After notice of execution M.J.C.No.47.2007 was filed and as it was belated application was moved for condoning the delay. M.J.C. was under Order 9 Rule 13 for setting aside the exparte decree. Advocate Shri Moharil was engaged for prosecuting that M.J.C. and said Advocate on 28.03.2009 filed pursis informing the Court that the applicant was not attending his office and was not giving any instruction. It appears that M.J.C. was fixed on 13.03.2008 and on that date said Advocate sought a months adjournment to issue that notice. The matter was adjourned to 28.03.2008 and hence Advocate informed that he at that time had not received the postal acknowledgment. However, Advocate produced the registered letter sent to the applicant. It further appears that thereafter Court issued notice for his appearance on 16.6.2008 and the applicant got said notice on 09.06.2008, the service is on applicant personally. It appears that, inspite of that no appearance was filed. The Court therefore, proceeded further in execution and sale deed of amount of Rs. 6,45,750/- has been executed in favour -3- of the present respondent / plaintiff. The Court has also placed the respondent in possession. The applicant on 10.01.2008 appears to have executed a sale deed of very same property in favour of one Shri Sudhakar Chavan for less amount i.e. for Rs. 5,70,000/-. In this sale deed he has mentioned that no legal proceedings are pending. Not only this, along with the appeal memo the certificate issued by Medical Superintendent dated 15.10.2008 has been filed to show that he was under medical treatment from 15.6.2007 to 15.10.2008. The certificate shows that he was suffering from Depressive Psychosis and it does not mention that he was unfit. The sale deed dated 10.01.2008 has been executed during this period only. The application for condonation of delay therefore fails to make out any ground and no bonafides what so ever have been shown by the applicant in the matter. Delay has not been explained properly. Application is therefore, rejected and consequently, First Appeal as filed is dismissed. JUDGE Rgd.