1 caf4807-08-10 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.4807 OF 2010 IN FIRST APPEAL ST.NO.31878 OF 2010 Ronald Anthony John Anderson (alias) Shri Commodore Anderson & Ors. .. Applicants Vs. Shah Nagindas Mancharam & Sons & Anr. .. Respondents Mr.J.A. Udaipuri for the applicants CORAM: K.K. TATED, J. DATE 5TH JANUARY, 2011 P.C. 1. Heard the learned counsel for the applicants. 2. The present Civil Application is preferred by original defendants for condonation of delay of 4 years 242 days in preferring the appeal against the judgment and decree dt.12.1.06 passed by learned Civil Judge, Senior Division, Kolhapur in Special Civil Suit No.135 of 2004. 2 caf4807-08-10 3. The learned counsel appearing on behalf of the applicants submits that the applicants learnt about the judgment and decree passed by the Trial Court when execution proceedings were served on them in the year 2008. He further submits that for want of knowledge it remained on the part of the applicants to take immediate steps in filing the present appeal in this court. In para 2 of the Civil Application, the applicants further pleaded that due to old age and because of ill health of applicant no.1, there is delay of 4 years 242 days in preferring the appeal. 4. The learned counsel appearing on behalf of the applicants submits that in the interest of Justice delay be condoned. He submits that the original plaintiff obtained ex parte decree from the trial court. He further submits that in the trial court summons were not served properly on them and therefore, no one remained present when the matter was called out for final hearing. He further submits that for the first time, they learnt about judgment and decree passed by trial court when the executing court issued notice in Special execution petition no.5/2008A. 5. It is to be noted that no where the applicant stated in Civil Application when they learnt about the ex-parte decree passed by the trial court. In para 2, they stated that when the respondent / original plaintiff started execution and when the executing court issued notice to them, they 3 caf4807-08-10 learnt about the judgment and decree passed by the trial court. Though they applied for certified copies of judgment and decree on 11.11.08, they filed present appeal on 30.1.09. 6. Section 5 of Limitation Act, 1963 enables the Appellate court to admit the appeal after prescribed period on the appellant applicant satisfying the court that he had sufficient cause for not preferring the appeal in time. It is the satisfaction about sufficiency of the cause in not preferring the appeal in time that confers jurisdiction to the appellate court for condoning the delay in filing the appeal. 7. If the appellant applicant does not show sufficient cause in preferring the appeal in time, the court does not give the power to arbitrarily condone the delay in the matter advancing substantial justice merely because the applicant litigant happens to be senor citizen and not keeping well. 8. In Ajit Singh Thakur Singh and anr. Vs. State of Gujarat (1981) 1 SCC 495 court observed : It is true that a party is entitled to wait until the last day “ of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before 4 caf4807-08-10 limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute sufficient cause. ” (Emphasis supplied) This judgment squarely applies to the facts in hand. 9. Considering the averments made in the Civil Application and the submissions made by the learned counsel appearing on behalf of the applicants, I do not find any substance in the present Civil Application. I am of the opinion that the applicants failed to make out sufficient cause for condonation of delay of 4 years 242 days in preferring the appeal. Hence, Civil Application is rejected. 10. In view of rejection of Civil Application for condonation of delay, First Appeal St.No.31878 of 2010 and Civil Application No.4808 of 2010 for stay are also dismissed. 11. The learned counsel appearing on behalf of the applicant seeks stay of the impugned judgment and decree passed by the trial court dated 12.1.06. As First appeal is not registered, there is no question of granting any stay. Prayer is rejected. (K.K. TATED, J.) 5 caf4807-08-10