1 caf4743-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa CIVIL APPLICATION NO.4743 OF 2010 IN FIRST APPEAL ST. NO. 31599 OF 2010 Rajendra S. Shivrame ... Applicant V/s. Sarojini R. Sulochane ... Respondent ..... Mr. S. D. Patil i/b. Ms. Deepa Matwankar for the applicant. Mr. Vinod N. Tayade for respondent No.1. Mrs. Uma G. Wagh for respondent No.2. ..... CORAM : A. S. OKA, J. DATE : APRIL 28, 2011. P.C.:- Heard the learned counsel appearing for the applicant. There is a delay of more than 8 years and four months in preferring an Appeal against a decree of partition and separate possession. 2. In the application for condonation of delay, it is stated that immediately after impugned decree was passed, the applicant obtained certified copies thereof and the same were handed over to the advocate appearing for the applicant in the trial Court for preferring an Appeal. It is stated in paragraph No.3 of the application that when the applicant 2 caf4743-10 enquired with his advocate on telephone about the progress of the Appeal, he was informed that the papers have been sent to an Advocate practicing in this Court. The said advocate has been named in paragraph No.3 of this application. In paragraph No. 4 of the application, it is stated that the applicant received notice of the execution application of the impugned decree filed in the year 2008 and, thereafter, he made enquiries about the status of the First Appeal with the Information Centre in this Court. At that time, he realized that Appeal was not preferred in this Court. It is stated that the applicant become aware that the Advocate to whom the papers were entrusted had already died. Hence, it is alleged that the applicant could not get back the original papers. It is stated that the applicant applied for certified copies of the Judgment and decree on 13th October, 2010 which were received on 15th October, 2010. 3. As the explanation for delay in the application was far from being satisfactory, by way of indulgence, the applicant was granted liberty to file additional affidavit to explain the delay. In the additional affidavit, the applicant has stated that he has no intention to malign the image of the advocate practicing in this Court who is no more. In paragraph No. 4 of the affidavit, he stated that his wife underwent a heart surgery in 3 caf4743-10 Mumbai on 20th October, 2000. In paragraph No.5, it is stated that in the year 2007-2008, the applicant has undergone angioplasty. It is further stated that the entire 2008, the employer of the applicant transferred him to Ahmednagar. It is stated that after disposal of the suit, there was mutual understanding between the applicant and the second respondent to give legitimate share of the first respondent. 4. Taking the averments made in the application as it is, it is obvious that the applicant was aware on the date of the decree about the impugned decree dated 20th April, 2002. The applicant has not disclosed as to when his advocate in the trial Court informed him that the papers of the matter were entrusted to the Advocate practicing in this Court. According to the applicant, he received notice of execution filed in the year 2008. Date of receipt of notice is not disclosed. It is not stated in the application that at any point of time from 2002 to 2008, the applicant had made any enquiry with the advocate to whom papers were allegedly entrusted. Now in the additional affidavit it is disclosed that the applicant become aware about the filing of the execution in January, 2010. It is pertinent to note that application for certified copies was made on 13th October, 2010. Sickness of wife is not an excuse as the applicant's wife has underwent heart surgery in 4 caf4743-10 October 2000. The applicant claims to have undergone angioplasty in the year 2007. Thus, there is a complete inaction on the part of the applicant for a long time. 5. Thus, there is no explanation for gross delay of more than 8 years. Even by taking a liberal view of the matter, it is not possible to condone the delay. Hence, application is rejected. 6. As a consequence of rejection of the application, the Appeal will not be registered. Hence, appellant will be entitled to refund of Court fees as per rules. 7. Civil Application No. 4742 of 2010 does not survive and the same is disposed of. JUDGE