1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.5381 OF 2008 IN FIRST APPEAL (ST) NO.23754 OF 2004 IN S.C.SUIT NO. 3516 OF 1988 Narhari Raghoba alias Worlikar and Ors ... Applicants Vs. Vasudeo Raghoba Kolia alias Worlikar ... Respondents (deceased) through his LRs. -------- Mr.R.R.Verma h/f.Mr.A.M.Saraogi, Advocate for Applicants. Mr.K.L.Parab, Adv. for Respondents. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 17th December, 2008 P.C. 1. This Civil Application is taken out by the applicants for setting aside the order dated 2nd May,2008 dismissing the Civil Application No.3363 of 2004. The application is filed on 20th October,2008. It is opposed by the respondents. 2. On 27th August,2004, the applicants filed the instant appeal together with Civil Application No.3363 of 2004 for condonation of delay of 4 years and 144 days in filing the appeal. On 17th September,2004, rule was granted on the civil application making it returnable after four weeks. Since then the applicants did not take 2 any step for service of the civil application upon the respondents. On 8th July,2005, the Court was informed that respondent No.1 had died and the heirs of respondent No.1 brought on record on 23rd November,2007. Even thereafter the Civil Application remained unserved upon the respondents. Then by the order dated 2nd May,2008, the applicants were directed to take steps to serve unserved respondents within a period of eight weeks. By the same order, private notice was permitted and the applicants were directed to file affidavit of service on completion of service. In case of non compliance of these directions, the appeal was to stand dismissed without further reference to the Court. Even this direction did not motivate the applicants in taking steps for service and on expiry of eight weeks from 2nd May 2008 i.e. on 27th June,2008, the Civil Application No.3363 of 2004 stood dismissed. With dismissal of the Civil Application, the First Appeal also automatically got dismissed. 3. Learned Counsel for the applicants states that he was not aware of all the above events. He learnt about the same for the first time in September,2008. It appears that despite dismissal by the self operative order, the appeal appeared on the board on 24th 3 September,2008. On that date, Mr. Saraogi, the learned counsel for the applicants appeared and the Court directed that the applicants should get the appeal numbered by removing all the office objections within a period of two weeks from the date of the order, failing which the appeal was to stand dismissed automatically for non-removal of the office objections. When that order was passed, the applicants had not pointed out to the Court that pursuant to the order dated 2nd May,2008, the Civil Application for condonation of delay was dismissed and consequently the appeal also stood dismissed. The applicants contend in the Civil Application that they were not aware of the order dated 2nd May,2008 until after passing of the order dated 24th September,2008. According to the applicants when enquiries were made for removal of office objections, it was learnt that the civil application had been dismissed by virtue of the order dated 2nd May,2008. 4. Mr. Saraogi, the learned counsel for the applicants states that in fact the applicants had served all the respondents with the Civil Application No.3363 of 2004 and he had filed affidavit of service in the office on 11th June,2008. Perusal of the Court proceedings shows that there is no affidavit of service filed by the 4 applicants concerning Civil Application No.3363 of 2004. Mr.Saraogi then tenders a bunch of papers with a docket of affidavit of service supposed to have been prepared in June,2008. It bears an endorsement that it was filed on 11th June,2008. The bunch of papers produced by Mr. Saraogi with the docket of affidavit of service does not contain any affidavit. It contains copy of the notice dated 2nd May,2008 allegedly sent to the respondents in respect of some Civil Application taken out by the applicants. The notice is accompanied by xerox copies of receipts from courier by name Trackon Couriers Private Limited. Thus, it is seen that what is tendered by Mr. Saraogi as copy of affidavit of service is no affidavit of service. The copy produced by Mr. Saraogi is marked `X' and retained in the file. 5. In the entire Civil Application, the applicants have not made out any case whatsoever explaining the negligence on the part of the applicants in taking steps in compliance of the Court's orders. In any case, by the Civil Application, the applicants seek to set aside only the order dated 2nd May,2008, which was an order directing the applicants to take steps for service. There is no prayer for the order dated 24th September,2008 which also directs that the appeal be dismissed in the event of non 5 removal of office objections within a period of two weeks from the date of the order. 6. The respondent No.1 in his affidavit-in-reply states that on the date when the applicants presented Civil Application No.3363 of 2004 along with the first appeal, the execution of the impugned judgment and decree was already complete. The application for execution filed in the proceedings was made absolute by the order dated 4th August,2004. He further points out that there had been several other Civil Applications being No.3364 of 2004, 2765 of 2007 and 4495 of 2005 filed in the appeal which were also dismissed for non compliance of conditional orders passed from time to time. 7. It is patent that the applicants have been thoroughly negligent in prosecuting the proceedings since the year 2004. Consequently, the Civil Application is dismissed. (SMT.R.P. SONDURBALDOTA,J)