1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 258 OF 2010 (Shamrao Ashru Chaudhari vs. Kisan Ashru Chaudhari through Lrs Raibai Kisan Chaudhari & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. SEPTEMBER 14, 2010. Heard Shri Deshpande, learned counsel for the appellant and Shri Naik, learned counsel for respondent No. 3 A & B – caveators. The arguments are being advanced in the light of earlier order dated 07.08.2006 passed by me in Writ Petition No. 1715 of 2006. The contention of Shri Deshpande, learned counsel is, present appellant had after service of summons of Regular Civil Appeal on him, moved application for his transposition as appellant and that application was rejected. That rejection was then questioned in Writ Petition No. 1715 of 2006 before this Court. This Court rejected that writ petition but then left the petitioner with option of filing a substantive appeal along with application for condonation of delay. In view of the liberty granted, the appeal along with prayer for condonation of delay was filed and that application has been rejected by the impugned order. The learned counsel states that rejection is 2 erroneous and as law does not prescribe any limitation for transposition under Order 1, Rule 10(2) of Civil Procedure Code, the approach of the appellate Court in the matter is unsustainable. He has relied upon the judgment in the case of Nilesh vs. Mathurabai, reported at 2005 (4) Mh. L.J. 481 and Shivaji vs. Chief Officer, Municipal Council, Karmad, reported at 2005 (3) Mh. L.J. 681, to urge that the approach of the Court in such situation has to be liberal. Shri Naik, learned counsel has pointed out that the RCA was filed by other parties to the suit within limitation in 2002 itself and the present appellant was served in it in December 2002. He moved application for transposition in December 2004 and that application was rejected on 14.12.2005. The learned counsel states that thus from December 2002, the appellant had knowledge of adverse judgment and decree and still moved transposition application on 22.12.2004 i.e. more than two years of his initial appearance. He further argues that application and its rejection cannot be used to contend that cause in present application for condonation of delay should be liberally construed. The perusal of orders passed by me on 07.08.2006 show that after hearing parties, I have recorded a finding that the contention that the petitioner therein (present appellant) was only a proforma defendant or proforma respondent was not supported by records. Thereafter, without recording any finding on 3 the request to file RCA, the petitioner was given liberty to file separate appeal, if it was otherwise open to him. It, therefore, cannot be said that this Court has condoned delay till the filing of application for transposition or then till 07.08.2006 indirectly. The contention that period of limitation is not prescribed to move an application for transposition is irrelevant in present facts. The appellant appeared in December 2002 in RCA and he moved application for transposition in December 2004. He was then aware that he has to challenge the impugned judgment and decree as delivered by the trial Court. I, therefore, find nothing wrong with the application of mind by the appellate court. Even if liberal approach is taken, as no just and sufficient grounds are shown for condoning delay, I do not find any substantial question of law arising in the matter. Second Appeal is, therefore, rejected. However, there shall be no order as to costs. JUDGE *GS.