1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8217 OF 2008 WITH CIVIL APPLICATION NO.2906 OF 2008 IN WRIT PETITION NO.8217 OF 2008 Shri Anwar Sayyed. ..Petitioner. V/s. Bangera K. Sheena & Ors. ..Respondents. Mr.H.S.Venegaonkar i/b.Zaidy & Co. for Petitioner. Mr.R.A.Thorat for Respondent No.1. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 23, 2009. DATE : MARCH 23, 2009. DATE : MARCH 23, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. The argument of the Petitioner is directly in the teeth of Supreme Court decision in the case of Damodaran Pillai & ors. v/s.South Indian Bank Ltd. Damodaran Pillai & ors. v/s.South Indian Bank Ltd. Damodaran Pillai & ors. v/s.South Indian Bank Ltd. reported AIR reported AIR reported AIR 2005 SC 3460. By now, it is well settled that the starting point for the purpose of limitation in the present case is the date of the order dismissing the execution application and not knowledge thereof. It is not in dispute that the Petitioner was duly served and had knowledge about the obstruction proceedings. If the Petitioner 2 failed to pursue his claim in the said proceedings for whatever reasons, it cannot be the basis to set aside the order though passed exparte that too after period of limitation. The Court has no jurisdiction in that behalf. 3. Assuming that the Court were to consider the explanation offered by the Petitioner, that is devoid of substance. It is not the case of the Petitioner that from last week of January, 2008 till 24th March, 2008 he was completely bedridden and was advised by the Doctors to take complete bed rest. It is not the case of the Petitioner that during this period, he did not attend to his other routine activities and duties. The explanation offered is obviously an afterthought and only with a view to protract the execution. It would be a case of misplaced sympathy to show indulgence to such litigants. Hence dismissed. 4. At this stage, Counsel for the Petitioner submits that the Petitioner may be permitted to withdraw the present application for setting aside exparte order and pursue remedy of substantive appeal. Request for permission to withdraw the present application will have to be stated to be 3 rejected. Petitioner has not only compelled the lower Court to decide the controversy in the said application, but also argued before this Court with vehemence. After having consumed so much of judicial time, the request of the Petitioner to allow him to withdraw the application does not commend to me. It would be a different matter that if the Petitioner files appeal, the same will have to be decided in accordance with the law. 5. In view of the above, nothing survives for consideration in the Civil Application. The same is dismissed. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)