1 wp7261.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.7261 OF 2010 Smt.Lalita U. Jha ...Petitioner vs. Kisan Atmaram Patel ...Respondent Mr.R.R.Tiwari for the petitioner Mr.R.C.Kaushik i/b Mr.Kaushik & Co. for the respondent CORAM :A.S.OKA,J. DATE : SEPTEMBER 28, 2010 P.C. 1 Heard the learned counsel for the petitioner. The petitioners is an obstructionist and the respondent is the decree holder. In a suit of the year 1985, a decree was passed in the year 1995. Execution application was taken out in the year 1999. The petitioner obstructed in the year 1999. Obstructionist notice was taken out by the respondent for removal of the obstruction of the petitioner. Obstructionist notice was made absolute on 6 th November 2006. An appeal against the order on obstructionist notice was preferred by the petitioner on 9 th November 2009. An application for condonation of delay was preferred by the petitioner which has been rejected by the impugned order. 2 The learned counsel for the petitioner submitted that the Appellate Court ought to have adopted a liberal and justice oriented approach especially when the case made out by the petitioner is that the Advocate concerned did not file the appeal in time. He invited the attention of the Court to the averments made in the application for condonation of delay and submitted that 2 wp7261.sxw delay was adequately explained. He submitted that the approach of the Appellate Court was errornous in as much as the petitioner was not expected to file an affidavit of the Advocate against whom she has made allegations. He therefore, submitted that subject to payment of costs, delay ought to have been condoned. 3 I have carefully considered the submissions. It must be noted that the petitioner is an obstructionist in execution of the decree passed in the year 1994 in the suit of the year 1985. The obstructionist notice was made absolute on 6 th November 2006 and obstruction of the petitioner was ordered to be removed. The averments made in paragraph (2) of the application for condonation of delay show that the petitioner was fully aware that the obstructionist notice was made absolute on 6 th November 2006 and that a certified copy of the order was received by the Advocate. Paragraphs 2 to 4 of the application read thus : 2 I say that the said obstructionist notice no.9 of 1999 was allowed on 6-11-2006 by Hon ble Judge Shri U.K.THusu in court no.17 of main Small Causes Court. I say that, my advocate was Mr.Upadhayay who has made application for certified copy and the same is received also but due to his change of office from Malad to Fort, Esplanade Mansion the papers of the said matter was misplaced and not traceable however, on my approach the said advocate was use to promise to file the appeal on one pretext to another hence, I believed upon my advocate. 3 I say that my native place is Bihar, Mothari District and I and my family used to go at native place mostly in summer vacation. I say that after coming back to Mumbai I have started enquiry the matter but, I could not find the same and my said advocate has also not told anything regarding the said matter. I say that thereafter I received notice taken out by the respondent which is execution notice. I 3 wp7261.sxw again made inquiry from my advocate then I came to know that no appeal is filed in the matter. 4 I say that, when I pressed to my advocate he has stated me that, the papers are not traceable then I engaged my present advocate who has on the basis xerox copy of judgment and order dated 6-11-2009 filed the present appeal and also made application of certified copy of original judgment. I crave leave to refer to and rely upon the application made to this Hon ble court for certified copy. 4 The petitioner has not given any details as to when she met her Advocate and made enquiry about the appeal. The averments made in the application are very vague and bereft of any particulars. Considering the fact that the delay is of three years and considering the fact that the petitioner is an obstructionist, the Appellate Court has observed that the petitioner was negligent. Even taking the averments made in the application for condonation of delay as correct, it is not possible to condone the delay even after adopting a liberal approach. 5 Hence, no case for interference is made out with the discretionary order passed by the Appellate Court. Writ Petition is rejected. 6 Civil application no.2376 of 2010 does not survive and the same is disposed of. 7 At this stage, the learned counsel for the petitioner prays for continuation of ad-interim relief. The said request is opposed by the learned counsel for the respondent. Ad-interim relief granted by this Court will continue to operate for a period of eight weeks from today. JUDGE