3. wp 3750­11.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3750 OF 2011 Mahadeo Karyappa Gavade & Ors .. Petitioners Vs Tukaram Hari Gavade & Ors .. Respondents --------------------------------------------------------------------------------------------- Mr. G.N. Salunke i/b Dr. P.K. Deshmukh for the Petitioners --------------------------------------------------------------------------------------------- CORAM : D.G. KARNIK, J. DATE : 21st JUNE, 2011. P.C.: 1. This petition is directed against the order dated 10th February, 2011 passed by the District Judge rejecting the application for condonation of delay in filing the Appeal. 2. The petitioners are the judgment-debtors against whom the decree has been passed in Regular Civil Suit No. 260 of 1998 on 10th March 2005. Five years later, the petitioners filed an appeal along with an application for condonation of delay in filing the appeal. The delay is of five years, seven months and twenty two days. The only ground mentioned in the application for condonation of delay was that the petitioners were not aware of the decision in the suit. The Appellate Court had disbelieved this. The Appellate Court noted that petitioner 1 3. wp 3750­11.doc nos. 1 to 3 had appeared in the suit and filed their written statement through their advocate but thereafter they remained absent at the trial. Petitioner Nos. 4 and 5 were served with the suit summons but never appeared in the suit and the suit proceeded exparte against them. 3. Learned counsel for the petitioners at one stage submitted that their advocate in the trial Court did not inform the petitioners about the date of hearing and even the date of the decision and therefore, the petitioners were not aware of the decision. No such averment is made in the application for condonation of delay. Without the pleadings to that effect and without any evidence about the advocate not informing the decision to the petitioners, the submission which is now sought to be made for the first time in this Court cannot be accepted. 4. The learned counsel for the petitioners then submitted that though it can be presumed that the petitioners were aware of the suit in as much as petitioner nos. 1 to 3 had appeared in the suit and petitioner nos. 4 and 5 were also served with the suit summons, that would only indicate the knowledge of the suit and not the knowledge of the decision of the suit. The submissions cannot be accepted. If such submission is accepted in every suit a party after appearing in the suit may remain absent at the time of decision and apply for setting 2 3. wp 3750­11.doc aside the decree years after it is passed contending that it was only aware of the suit and not aware of the decision. After having been served with the suit summons and after having appeared in the Court, it was the duty of the petitioners to continue to appear in the suit and if they wished, to contest the suit. 5. No other ground was urged. There is no merit in the petition which is hereby rejected. [ D.G. KARNIK, J ] 3 3. wp 3750­11.doc 4