1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.7766 OF 2009 Santojirao Baburao Jadhav ...Petitioner vs. Mahavir Bharmappa Mantri ...Respondent Mr.Chetan G. Patil for the petitioner Mr.A.S.Khandeparkar i/b Mr.D.H.Pawar for the respondent CORAM :A.S.OKA,J. DATE : APRIL 5, 2010 P.C.: 1 Heard the learned counsel for the petitioner. The petitioner is the defendant in the suit for specific performance filed by the respondent. The suit was decreed on 20 th July 2007. An appeal was preferred by the petitioner before the District Court on 6 th November 2008 along with an application for condonation of delay. By the impugned order, the said application for condonation of delay has been rejected by the learned District Judge. The delay is of 786 days. 2 The learned counsel for the petitioner invited my attention to the averments made in the application for condonation of delay and in particular paragraph 4 of the application. He pointed out that the daughter of the petitioner who was a heart patient was pregnant and she was residing with the petitioner. It is stated that from 15 th November 2006 to 12 th December 2006, the daughter was admitted in a hospital at Kolhapur. It is also stated that from 29 th December 2006 to 2 nd January 2007, the daughter was again hospitalised. He stated that on 18 th February 2007, the daughter delivered a child and on 11 th 2 November 2007, the daughter died due to heart ailment. The learned counsel for the petitioner pointed out that the petitioner's wife suffered a shock and she was hospitalised on 14 th November 2007. It is stated that from time to time, the petitioner s wife was admitted in hospital and lastly she was discharged on 21 st April 2008. It is stated that she is still under treatment. He submitted that all relevant documents issued by various hospitals have been annexed to the application. 3 He pointed out that the petitioner was contesting the suit. He was under an impression that the suit will be transferred to the newly created Court of Civil Judge Senior Division at Ichalkaranji. He pointed out that the petitioner was under an impression that notice of transfer will be issued. He submitted that the suit was not transferred to the newly established Court at Ichalkaranji and instead the same was transferred to another Court at Kolhapur. He relied upon a decision of this Court in case of Pusaram s/o Dashrathlalji Agrawal vs. Ratilal s/o Valji Laddha and another [2005 (4) Mh.L.J. 341]. He submitted that in view of the said decision, decree passed by the Civil Court is nullity and this aspect goes to the root of the matter. 4 I have carefully considered the submissions. The petitioner has come out with the case of ailment of his daughter during the period from 15 th November 2006 to 11 th November 2007 when unfortunately the daughter died. Thereafter, the case is that from 14 th November 2007 till 21 st April 2008 the petitioner's wife was constantly under treatment. 5 However, as pointed out in paragraph 11 of the affidavit in reply, it is not in dispute that the 3 petitioner was served with notice of execution of the decree for specific performance on 2 nd August 2007. It is not in dispute that on 11 th September 2007, the petitioner made an application in the execution application raising an objection to the decree on the ground that the same was passed by the Court having no jurisdiction. By order dated 29 th January 2008, the said application was rejected. An appeal was preferred against the said order by the petitioner in the year 2008. Moreover, in the execution, on 13 th August 2008, a sale deed has been executed in favour of the decree holders by the Court Commissioner. 6 At this stage, the learned counsel for the petitioner submitted that the petitioner is not sure whether the appeal referred to in paragraph 11 of the affidavit was really filed. Even assuming that the appeal was not filed by the petitioner, what is material is that the petitioner was admittedly served with the notice of execution application on 2 nd August 2007 and on 11 th September 2007, the petitioner raised an objection to the jurisdiction of the Court. The said application was prosecuted and was rejected on 29 th January 2008. Thus, material facts have been completely suppressed in the application for condonation of delay . Moreover, the fact that on 3 rd August 2008, a sale deed was executed in execution application was also suppressed by the petitioner. The petitioner cannot plead ignorance of the execution of the sale deed as the petitioner was not only a party to the execution but he appeared and contested the execution application. As stated earlier, the application for condonation of delay was filed on 6 th November 2008. 7 The approach of the Court while considering the 4 application for condonation of delay has to be liberal. However, in the present case, not only that the delay is of more than 780 days but this is a case where the petitioner has suppressed material facts while applying for condonation of delay. 8 As far as decision of this Court in case of Pusaram (supra) is concerned, that deals with the merits of the issue of jurisdiction with which this Court is not concerned in the present Petition. 9 No case for interference in writ jurisdiction is made out. Writ Petition is rejected. JUDGE