1 caf30 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.30 OF 2011 IN FIRST APPEAL ST.NO.33053 OF 2010 Victor Prascol Miranda ...Applicant vs. M/s.Joshua Developers ...Respondent Mr.S.M.Kamble for the applicant Mr.R.R.Salvi for the respondent CORAM : A.S.OKA,J. DATE : MARCH 29,2011 P.C.: 1 Heard the learned counsel for the applicant. Delay in preferring the appeal is of 2 years and 218 days. The learned counsel for the applicant pointed out that after the decree was passed, the applicant was advised to file an application for setting aside the decree. He stated that accordingly, miscellaneous application no.10 of 2008 was filed by the applicant. The said application was rejected on 19 th August 2010 as the remedy of preferring appeal was available. He pointed out that after rejection of the said application, present appeal was preferred on 23 rd December 2010. He submitted that the applicant was prosecuting the application before the Trial Court in a bona-fide manner. Apart from that he invited attention of the Court to the averments made by the applicant in paragraph 14 of this application in which other difficulties on account of fact that his wife is suffering from Cancer have been set out. The learned counsel for the respondent pointed out that on 30 th June 2010, a conveyance in respect of the suit property has 2 caf30 been executed by the applicant in favour of a third party during the pendency of the application for setting aside the decree and this fact was suppressed during the pendency of the application for setting aside the decree. He pointed out that the fact that a conveyance is executed, is not disclosed in this application. 2 The learned counsel for the applicant has tendered a rejoinder. He submitted that the effect of the execution of sale deed can be considered at appropriate stage. However, a case is made out for condonation of delay, considering the fact that the applicant was advised to prosecute the application for setting aside the decree. 3 I have given careful consideration to the submissions. It is well settled that while deciding the application under section 5 of the Limitation Act, 1963 the Court has to adopt a liberal and justice oriented approach. Even assuming that the applicant was advised to apply for setting aside the decree before the trial Court, the applicant admittedly executed a registered sale deed in respect of the suit property on 30 th June 2010 in favour of a third party. Impugned decree dated 8th February 2008 directs the applicant to execute conveyance in respect of the suit property in favour of the respondent. Even after executing the conveyance during the pendency of the application for setting aside the ex-parte decree, the said fact was not disclosed before the trial Court. Moreover, this important fact is not set out in the present application. 4 Considering the conduct of the applicant, this is not a case where delay of 2 yeas and 218 days can be condoned. No case is made out for condonation of delay. Application is rejected. 3 caf30 5 As application for condonation of delay is rejected, the appeal cannot be registered. The applicant will be entitled to refund of court fees, if any, as per the rules. Civil application No.31 of 2011 does not survive and the same is disposed of. JUDGE