(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Writ Petition No. 1149 of 2009 Santosh s/o. Nersingrao Pulkundwar. .. Petitioner (Original defendant) versus Godavaribai w/o. Sambhajirao Akkalwad. .. Respondent (Original plaintiff) .................. Mr. S.V. Suryawanshi, Advocate, holding for Mr. G.P. Shinde and Mr. A.P. Piratwad, Advocates, for the petitioner. Mr. M.V. Ghatge, Advocate, for the respondent. .................. CORAM : B.R. GAVAI, J. DATE : 25TH JUNE 2009. COURT’S ORDER : 1. By way of present petition, the petitioner challenges the order dated 4th September 2008, passed by the learned District Judge-3, Nanded, below Exhibit 1 in Miscellaneous Civil Application (RJE) No. 6/2008, thereby rejecting the application filed by the present petitioner for condonation of delay of 179 days caused in filing application for restoring the application for condonation of delay, in filing the appeal. (2) 2. A decree for recovery of hand loan has been passed against the present petitioner. Being aggrieved thereby, an appeal was filed. Since the present petitioner was not present when the appeal was fixed, the appeal came to be dismissed in default. Therefore, an application for restoration of the said appeal was filed. Since there was delay in filing the application for restoration, an application for condonation of delay, in filing application for restoration of the appeal, was filed. The same was also rejected. Thereafter, an application for condonation of delay, in filing application for restoration of the application for condonation of delay, which was dismissed, came to be filed. The same is rejected. Hence, the present petition. 3. Mr. S.V. Suryawanshi, learned Counsel appearing for the petitioner, submits that the appellate court has erred in rejecting the application. He submits that the son of the petitioner was suffering from mental ailment and, therefore, delay occasioned in filing the application. He further submits that Rule 18 of Order XLI of the Code of Civil Procedure, 1908, was deleted and, therefore, the appellate court had no power to dismiss the appeal. 4. Mr. M.V. Ghatge, learned Counsel appearing for the respondent, submits that the petitioner has given incorrect reason before the appellate court. He submits that though the petitioner has stated in the application, that he was prevented on account of ailment of his son, but the petitioner has appeared in the execution proceedings. He has produced documents in support of the said submission. 5. It appears that the petitioner has been thoroughly negligent. Firstly, appeal came to be dismissed in default. Thereafter, application (3) for restoration was not filed within prescribed period and, therefore, he was required to file application for condonation of delay. The said application was also dismissed in default. Therefore, he was required to file application for restoration for restoring the application for condonation of delay. Since there was delay of 179 days in filing the application, another application was required to be filed for condonation of delay in filing the application. 6. The appellate court has found that the explanation given by the petitioner was not at all satisfactory. It has been observed that no medical certificate was placed on record in support of the contention, that the son of the petitioner was suffering from any ailment. 7. Apart from that, from the documents produced on record by the respondent, it can be seen that in the execution proceedings, during the said period, the petitioner has appeared on five occasions. 8. In that view of the matter, no case is made out for interference in exercise of extraordinary jurisdiction of this court under Article 227 of the Constitution of India. 9. Petition is, therefore, dismissed. ( B.R. GAVAI ) JUDGE ...................... bgp/wp1149