IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1456 OF 2008 IN SECOND APPEAL NO. 628 OF 2004 Sumedh Madhukar Kamble ...... ...... ...... Applicant V/s Smt.Yamunabai Gulabrao Lambkane & Ors. ...... Respondents. Mr.Balasaheb Deshmukh, Adv. For the applicant. Mr.N.V.Bandiwadekar, Adv. For respondents. CORAM: R.V. MORE, J. 21st NOVEMBER, 2008. PC: Heard Mr.Deshmukh, learned counsel for the applicant and Mr.Bandiwadekar, learned advocate for the respondents. Civil application is filed for restoration of second appeal No.628 of 2004. The second appeal was dismissed for default on 7.4.05 and the present civil application is filed on 17.7.08 after delay of almost more than three years. Mr.Deshmukh, learned advocate contended that the applicant had earlier engaged services of another advocate. Said advocate did not inform the applicant about progress of the matter. Applicant was also not aware and ultimately second appeal was dismissed as none remained present when the second appeal was called out on 7.4.05. He submitted that for the fault of an advocate 1 the applicant should not be made to suffer. 2. Learned counsel for the respondents opposed the restoration application on the ground that no case is made out for condonation of delay of three years and ultimate restoration of second appeal. It was also contended that the second appeal has otherwise become infrucutous in as much as the decree is executed and possession of the suit premises is already delivered to the respondents. Mr.Deshmukh, disputes the fact that decree in question is executed. 3. Having heard the learned counsel for respective parties and having gone through the civil application and reply filed thereto I am of the considered view that no case is made out for for condonation of delay occurred in filing and restoration of application. Second appeal was dismissed for default on 7.4.05. Though the applicant in para 3 of his application has stated that his earlier advocate did not inform about progress of the matter nowhere in the application the applicant has given the date of knowledge of order dismissing the second appeal in default. The applicant has made only vague averment that he was not aware of the progress in the matter and his earlier advocate was looking after the proceedings in the second appeal. In my view, averment in para 3 of the application will not be sufficient to condone the long delay of more than three years in filing application for restoration. From the perusal of the application and submission advanced by learned advocate for the applicant it is clear that the applicant was not diligent in prosecuting the second appeal. 2 On this ground alone I am of the opinion that the application does not deserve any consideration. 4. Be that as it may, the respondents have filed affidavit in reply. Though the learned advocate for the applicant denies receipt of the said reply, the endorsement on the civil application does show that copy is received by the clerk of the learned advocate for the applicant on 17.10.08. The reply categorically shows that the decree in question is already executed. The bailiff's report and the panchnama annexed at Ex.A. Ex.B to the reply support respondent's contention that Mutation entry in pursuance of execution proceedings is also effected. In that view of the matter I find substance in the arguments of learned advocate for the respondent that second appeal has become infructuous. In view of above facts, civil application stands dismissed. 21.11.08 (R.V. MORE, J.) 3