1 SA 613.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 613 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.A.S.Usmanpurkar ,Advocate for the appellant. Mr. Kale, Advocate for the respondents. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 31/03/2011 PER COURT : 1. The present respondent nos. 1 and 2 had filed Suit for partition and separate possession, which came to be decreed on 15/12/2000. The present respondent nos. 1 and 2 thereafter filed Darkhast proceedings bearing R.D. No. 51 of 2002 for execution. The notices of the same were served on the Judgment Debtor. The present appellant no. 1 appeared in the said Darkhast proceedings and appointed Advocate. Thereafter the present appellants filed an application bearing M.A. No. 9 of 2008 along with Appeal before the 2 SA 613.2010 District Court. The said Misc. Application was for condonation of delay in filing the Appeal. The District Court rejected the said application. Aggrieved thereby, the present Second Appeal is filed. 2. Mr. Usmanpurkar, the learned counsel for the appellants with all his persuasiveness contends that the proceedings before the trial Court in R.C.S. No. 28 of 1997 were proceeded without Written Statement of the appellants. They did not get the knowledge of the Judgment and decree passed in the said Suit and after getting the knowledge, they preferred Appeal. As such, even if the delay in filing the Appeal appears to be inordinate i.e. about seven ( 7 ) years and nine ( 9 ) months, still the same is not deliberate and intentional, but due to the fact that the appellants did not get the knowledge of the Judgment and decree and that they were ill advised. The learned counsel further contends that it is a dispute between the father and the son and the first wife of the appellant no. 1. The property in issue is the self-acquired property of the present appellant no. 1 and the appellants may not be non suited only on the technical ground of delay. The learned counsel further contends that when technical considerations and cause for substantial justice are 3 SA 613.2010 pitted against each other, then the cause for substantial justice shall prevail. According to the learned counsel, the appeal is the substantive right of the party and an opportunity deserves to be given to the appellants. The respondents can be compensated in terms of costs. 3. Per contra Mr. Kale, the learned counsel for the respondents contend that the delay is abnormal and inordinate. The delay is intentional as the appellants are enjoying the suit property. It is only after the execution of the decree, the Appeal is filed belatedly. The learned counsel further contends that the contention of the appellants that the appellants got the knowledge in 2008, is erroneous and against the record. In fact, the appellant no. 1 even had appeared in the execution proceedings and filed application in the year 2002 itself. As such, on the said date, the appellant no. 1 had the knowledge of the Judgment and decree, but still no steps were taken to file the Appeal. As such, the act of the appellant is not bonafide and can not be condoned. 4. With the assistance of the learned counsel, I have gone through the orders. 5. No doubt the expression ‘ sufficient cause ’ 4 SA 613.2010 has to be liberally construed. But, it can not be construed in such a manner that it would jettison the provisions of the Limitation Act. When it is on record that the appellant had the knowledge of the Judgment and decree passed in the Suit filed by the present respondent nos. 1 and 2 in the shape of the service of the notice of execution proceedings, even the appellant no. 1 had appeared in the execution proceedings in 2002, but, for a long slumber of seven ( 7 ) years, did not take any steps, itself shows that delay is not accidental nor beyond the control of the appellant. The appellant is enjoying the suit property and certainly he would be benefited by the delay. The respondent nos. 1 and 2 got a decree in their favour in the year 2000 and they are not in a position to enjoy the fruits of the decree passed in their favour. When the appellant no. 1 had knowledge in the year 2002 itself of the Judgment and decree passed by the trial Court, then it was certainly erroneous on their part to state that the appellant no. 1 got the knowledge for the first time in the year 2008 about the Judgment and decree. The equitable jurisdiction and the discretion can not be exercised in favour of such a litigant. 6. For all the aforesaid reasons, the Second Appeal being sans substantial question of law, is 5 SA 613.2010 dismissed however with no order as to costs. 7. In view of dismissal of Second Appeal, the Civil Application does not survive and is dismissed. [ S.V. GANGAPURWALA,J. ] KNP/SA 613.2010