:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.1938 OF 2008 PETITION NO.1938 OF 2008 PETITION NO.1938 OF 2008 Hanumant Rangnath Bhapkar & 3 Ors ..Petitioners V/s Eknath Rangnath Bhapkar & 4 Ors. ..Respondents Mr.Rejesh More for the petitioners Mr.Tanaji Mhatungde h/f S.B. Deshmukh for the respondents CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 24TH JUNE, 2008 : 24TH JUNE, 2008 : 24TH JUNE, 2008 P.C. 1. This petition is directed against the order dated 30th July, 2004, whereby the application for the petitioners for condonation of delay in filing the appeal came to be rejected. 2. The petitioners are Defendant Nos. 1, 3, 5 & 7 in the suit. The appeal was sought to be filed against the exparte judgment and order passed in Special Civil suit No. 1871/1998 for partition. The decree in the suit was passed on 1-8-2002. The case of the petitioners is that they were not aware that the decree was passed as they were not informed that the suit was kept for hearing by their advocate. The petitioners have not filed their written statement in :2: the matter. According to the petitioner, there is a delay of 145 days in filing the appeal, which requires to be condoned as they were not aware of the decree being passed, else they will suffer irreparable loss and injury. 3. According to the petitioners, they came to know about the exparte decree when the respondents, who are the original plaintiffs, filed execution application. Thereafter they applied for certified copy of the judgment and decree on 24/12/2002. It is not disputed that the petitioners were served with Writ of Summons and did not file written statement. According to the petitioners, a liberal approach was required to be taken in the matter. However, the application for condonation of delay in filing the appeal has been rejected by the impugned order. 4. In normal course, this court would have considered the case of the petitioners liberally. However what I find is that even the present petition has been filed only on 2nd March, 2008 when the impugned order was dated 30th July, 2004. The reasons for the delay set out in para 14 of the writ :3: petition, wherein again, the petitioners are seeking to lay the blame on the advice given by their Advocate that the petitioners legal rights over the suit property can be adjudicated in the execution proceedings which has been filed by the decree holder and the petitioners were therefore, under the bonafide impression that their rights can be adjudicated therein. 5. It is therefore, urged that the impugned order is required to be set aside as sufficient cause has been made out by the petitioners in condoning the delay in filing the present writ petition as well as the Appeal. 6. The learned Counsel for the respondent on the other hand, opposed the petition and submitted that the impugned order has been rightly passed as no sufficient cause has been made out to condone the delay. He has relied upon the case of Kuddus Khan Kuddus Khan Kuddus Khan Gaffarkhan Gaffarkhan Gaffarkhan and another V. and another V. and another V. Mohammad Mohammad Mohammad Yakub Pir Yakub Pir Yakub Pir Mohammad Mohammad Mohammad & another & another & another, reported in 2002 (2) Bom C.R. 82 wherein this Court has held that after decree, when notice under Order 21, Rule 22 of CPC was served, and :4: the party had even engaged a Counsel who asked for time, it cannot be said that the party were not aware of decree and delay in appeal cannot be condoned. Relying upon the aforesaid judgment the learned Counsel for the respondents argued that the petitioners were aware of the execution proceeding and they have chosen not to file the appeal in time. The learned Counsel for the respondent has also relied upon the case of Chandra Bhushan and another Chandra Bhushan and another Chandra Bhushan and another V. V. V. Deputy Director of Consolidation (Regional) U.P. Deputy Director of Consolidation (Regional) U.P. Deputy Director of Consolidation (Regional) U.P. and and and others, others, others,reported in AIR 1967 S.C.1272, wherein the Apex Court has held that there is no prescribed period of limitation in so far as filing of writ petitions under Article 226 of Constitution of India are concerned and the Court shall consider the facts and circumstances of each case and exercise its discretion in the matter whether the applicant has been guilty of laches or undue delay. The learned Counsel therefore, submitted that, the writ petition itself being filed after the period of more than 3 and 1/2 years the same ought not to be entertained. :5: 7. I have considered the rival contentions and perused the material on record as well as the rulings cited by the learned Counsel for the respondents. In my view the petitioners are clearly guilty of laches and undue delay as they have filed the aforesaid petition challenging the impugned order after a period of 3 and 1/2 years. It is hard to believe that the petitioners came to know about the execution proceedings only when they were served with the proceedings in that regard. It is admitted fact that the writ of summons was served on them and that they had engaged an advocate. The petitioners seems to be habitually negligent and did not file any written statement in the suit.The petitioners have remained absent and have suffered an exparte decree and the Appeal is sought to be preferred after the expiry period of limitation. The Trial Court has considered the case of the petitioners and has rightly came to the conclusion that no sufficient cause is made out to condone the delay in filing the Appeal and rejected the Appeal of the petitioners for condonation of delay. In my view, the impugned order does not warrant interference. :6: 8. In this view of the matter, writ petition is dismissed with costs quantified at Rs. 1000/- to be paid by the petitioners to the respondent Nos.1 and 2. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)