1 1. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CA NO.730/2010; 731/2010 in FA ST.NO.28727/2009. (Smt. Ushabai Ananda Mali and Ors. Vs. Sau Banubai Ramdas Mahajan) ----------------------------------------------------------------------------------------------------------- Office notes, office Memoranda of Coram,appearances, Court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ----------------------------------------------------------------------------------------------------------- CORAM : P.R.BORKAR, J. DATE : 19 th July, 2010. ... 1) Heard Mr. GV Wani, Adv. for the applicants and Ms.VP Dhorde, Adv. for sole respondent. 2) This is an application for condonation of delay of 657 days, caused in filing the First Appeal, challenging the Judgment and decree passed in Special Civil suit No.137/2009 by Civil Judge, Senior Division, Jalgaon, whereby the decree for partition and separate possession in respect of the landed property was passed. 3) In the application, the applicants stated, after they received a notice of the suit, they engaged Advocate Shri V.K.Borole to represent them and they have also filed their written statement in the matter in the year 2000. It is stated that thereafter the applicant No. 2 was looking after the matter and they were not aware about the procedural law 2 and they relied upon the assurance given by their advocate. They were also not aware as to when the suit was actually decided and on 1.12.2009 they received a notice dated 13.11.2009 from the Taluka Inspector of Land Record, informing that the land bearing Gat No.108 was to be measured for partition purposes in pursuance of the orders passed by learned Civil Judge, Senior Division, Jalgaon in Special Darkhast No.37/2008. It is stated that after receipt of the said notice, they approached their Advocate and enquired about the fate of the civil suit, whereupon it was told to them that the suit was still pending and the advocate will inform them the exact status of the matter. Thereafter, the applicants have shown the copy of the notice issued by Taluka Inspector of Land Record. Thereafter, they applied for a certified copy when they learnt that the suit was already decided. In the circumstances, it is stated that the applicants were not at fault and the applicant no.2 was not aware of the decision of the suit till they receive the notice dated 13.11.2009 on 1.12.2009 and lastly, they prayed that the delay may be condoned. 4) As against this, the learned Counsel appearing for the respondent, has filed 3 a reply to the said application, stating that the reasons for delay, assigned by the applicants, are not true and sufficient to condone the delay. The learned Counsel has also produced a copy of notice dated 11.6.2008, whereby the present applicants were called upon to appear before the Executing Court on 8th August, 2008. As per the report of the bailiff concerned, a copy of which is produced, it is seen that the notice was received by applicant no.2, for himself and on behalf of defendant nos. 1, 3, 4 and 5. The copies of the said notice and the report thereon are taken on record and marked as “X” for identification. The Advocate for the respondent has also produced on record a copy of Regular Darkhast showing that she was put in possession of the property of her share. In the reply it is stated that the reasons for condonation of delay set out by the applicants are not satisfactory and sufficient and the delay caused in filing the appeal is with intention to defeat the partition and harass the respondent. 5) It may be noticed that almost after two years from the date of judgment and decree of the trial court, i.e. on 15th of December, 2009, the present appeal 4 with application for condonation of delay, is filed. 6) After considering the aforesaid circumstances, this is not a case where delay should be condoned. The suit is for partition and it is desirable that such a suit should be disposed of without any delay and the party in whose favour decree is passed should enjoy the fruits of their legitimate rights during their life time. In the result, the application for condonation of delay is dismissed. In view of dismissal of CA for condonation of delay, CA for stay does not survive, it is dismissed. (P.R.BORKAR) JUDGE bdv/ca730.10