( 1 ) ca1638.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 1638 OF 2009 (for condonation of delay) WITH CIVIL APPLICATION NO. 10708 OF 2008 (for stay) IN SECOND APPEAL ST. NO. 19168 OF 2008 Pandurang s/o. Shivram Jadhav .. Applicants (died through LRs) & Anr. Versus Manohar Manika Thorat & Ors. .. Respondents Mr. G.R. Sayed, Advocate for the applicants. Mr. M.V. Deshpande h/f. Mr. B.N. Gadegaonkar, Advocate for respondent Nos. 1 to 4. CORAM : A.V. NIRGUDE, J. DATE : 10.06.2011 P.C. :- 1. This application seeks condonation of delay of 2139 days in filing of the Second Appeal. Generally applications for condoning delay are not seriously opposed and the Courts also ( 2 ) ca1638.09 tend to take lenient view in condoning the delay. But, this case has chequered history and the application, therefore, is staunchly opposed. 2. The facts leading to this application in short can be narrated as under :- 3. Respondent Nos.1 to 4 filed suit for partition essentially against their mother and the purchasers of joint family property, namely, original defendant No.1 and the his wife the applicant No.2 Shantabai, who were husband and wife and challenged the alienation for want of legal necessity. The suit was decreed on 12th February, 1998. Shantabai and her husband filed R.C.A. No.50 of 1998, but the same was also dismissed on merits on 19th August, 2002. Apparently, no Second Appeal was filed. 4. It seems, respondent Nos.1 to 4 started execution ( 3 ) ca1638.09 proceedings some time in 2004 and the Court sent the decree for execution to the Collector, some time prior to September, 2004. The Collector directed the Tahsildar to execute the decree and around that time the Tahsildar issued notices to both the decree holders as well as judgment debtors, as to decide modality of the actual partition of the land. The husband of Shantabai, appeared before the Tahsildar as the J.D. But ultimately, the Tahsildar on 30th October, 2004, passed certain orders and directed delivery of possession of the suit- land to respondent Nos.1 to 4. This was probably for the first time that the judgment debtor including applicant No.2- Shantabai ought to have realized that she was on the verge of losing possession of the suit land. Unfortunately, soon thereafter in February, 2005, Pandurang, the husband of Shantabai died. 5. Shantabai the applicant No.2, alleged that Pandurang- her husband was a drunkard and due to such ( 4 ) ca1638.09 habit he died. She also said that her husband was taking care of the litigation during his lifetime and she being an illiterate woman did not even know the existence of the litigation. On 25th July, 2005, Shantabai, as a widow of Pandurang, for the first time on her own engaging an advocate went before the Sub-Divisional Officer and challenged the direction of the Tahsildar for partition and delivery of possession of the suit land. But despite the legal assistance, the representation was dismissed on 11th December, 2006. The representation, thus remained pending for about one and half years. Shantabai, thereafter, took the matter by filing appeal before the Additional Collector. The appeal was filed on 8th January, 2007, again with legal assistance. The appeal was dismissed on 14th February, 2007. Shantabai did not stop at that, but she filed representation before the Additional Divisional Commissioner at Aurangabad, some time in February, 2007 and tried to make an application for stopping of delivery of the possession. While her application was still pending, thereafter, on 25th April, ( 5 ) ca1638.09 2008, Shantabai made an application to the Civil Court and requested it to stop the execution of the decree. On 28th August, 2008, the Civil Court rejected her application holding that the rights of the parties were already decided, due to the dismissal of R.C.A. No. 50 of 1998, way back on 19th August, 2002. Shantabai is saying that for the first time she learnt on that day that R.C.A. No. 50 of 1998 was pending and was dismissed in 2002. 6. Shantabai, on the other hand, somehow, succeeded in getting order of status-quo from the learned Additional Divisional Commissioner, on 26th August, 2008, but respondent Nos. 1 to 4 soon thereafter in September, 2008, by filing Writ Petition before this Court, challenged the order of status-quo passed by the Additional Divisional Commissioner. Shantabai appeared in the Writ Petition to oppose the same. Shantabai in the meantime, on 26th September, 2008, filed this Second Appeal along with present application seeking condonation of ( 6 ) ca1638.09 delay. 7. In support of her application, Shantabai filed an affidavit and stated as said above for the first time she learnt about the dismissal of her R.C.A. No. 50 of 1998, on 26th August, 2008. She also suggested that due to incorrect legal advice she kept on filing the proceedings before the Revenue Courts. She thereby suggested that as late as in August, 2008 for the first time, she received advice to file the present appeal. 8. The question is - whether the delay deserves to be condoned? The answer is in NEGATIVE. 9. I am assuming that Shantabai was completely unaware of the litigation in which at one stage she was one of the defendants and at the other one of the appellants, because her husband Pandurang was taking care of the same. I am ( 7 ) ca1638.09 also inclined to believe her case that she learnt about this litigation only after she received threatening order from the Revenue Officer during the execution of the decree after death of her husband – Pandurang. I am also inclined to believe that she learnt about the impending execution of the decree with possibility of losing possession only on or about 26th July, 2005. But, I am not inclined to believe her case when she said that she was not aware of dismissal of R.C.A. No. 50 of 1998, which occurred on 19th August, 2002. This is utterly unbelievable because since July 2005, she was getting legal assistance. The advocate appearing for her was filing the proceedings before the Revenue Courts. She was required to file proceedings before the Revenue Court because she was about to lose possession of the suit-land pursuant to the execution of a decree passed by Civil Court. So, it should be assumed that she was aware that certain decree was passed against her by a Civil Court. The fact that Shantabai moved a Misc. Application before the Civil Court in April, 2008, clearly indicates that she ( 8 ) ca1638.09 was at least then aware that certain decree was passed by the Civil Court and she was required to stop its execution. It is, therefore, also clear that her statement that due to wrong advice, she kept herself engaged in litigation before the Revenue Court is utterly false. On the contrary, what emerges from the facts mentioned above is that Shantabai most probably accepted the dismissal of her appeal in 2002 as a fait accompli in 2002 and tried to delay the inevitable. She kept on filing proceedings before the Revenue Courts to delay the delivery of possession of the suit-land. It is thus clear that Shantabai had full knowledge of the fact that her appeal was dismissed long back and all that she could do then was to avoid delivery of possession. 10. The learned advocate appearing for Shantabai tried to show me certain judgments in support of her case. One of such judgments is of the Superme Court in the case of The State of West Bengal Vs. The Administrator, Howrah ( 9 ) ca1638.09 Municipality and Others etc., AIR 1972 SUPREME COURT, 749. The State of West Bengal was before the Supreme Court and was seeking condonation of delay which was caused in filing of the appeal. It was case of the State that after the impugned judgment was passed by the Additional District Judge in a land acquisition reference, they were wrongly advised to file Writ Petition etc. The State got engaged in prosecuting the writ petition and lost valuable time in such futile litigation and ultimately and belatedly realized that they ought to have filed appeal before the High Court against the judgment. The Supreme Court condoned the delay on the ground that the delay was caused due to incorrect legal advice given to the State of West Bengal. 11. In this case, as said above, it is suggested that Shantabai was given wrong advice to go before the Revenue Courts and that prevented her from filing the Second Appeal. But, this cannot be accepted mainly because Shantabai made ( 10 ) ca1638.09 a palpably false statement that she learnt about the dismissal of R.C.A. No. 50 of 1998, for the first time in August, 2008. 12. The learned advocate appearing for Shantabai asserted that the Court should take lenient view because Shantabai is not only widow but is a villager and illiterate. She even does not know writing. She uses her thumb impression in place of her signature. He said, the Court should take lenient view while appreciating the case of such illiterate person. He placed reliance on judgment of the Supreme Court in the case of Hanmavva & Ors. Vs. Pettiya & Ors., 2008 (5) ALL MR 1007. The Supreme Court in that case condoned the delay of 725 days on the ground that the appellants were rustic illiterate villagers and were not aware of legal procedure. This judgment is not useful for the applicants, because as said above Shantabai has been litigating since 2005 and she is trying to tell the Court that she became aware of the impugned judgment and decree for the first time in 2008. She no longer ( 11 ) ca1638.09 remained rustic illiterate the moment she engaged her advocate independently in July 2005. In other words, with the help of legal advice Shantabai learnt about the judgment and decree way back in July 2005 and yet she delayed filing of the appeal for about three years. Thus, her case should fail. This application stands rejected. The record and proceedings of lower Court be sent back. 13. In view of disposal of Civil Application for condonation of delay, Civil Application for stay does not survive and stands disposed of as such. [A.V. NIRGUDE, J.] snk/2011/JUN11/ca1638.09ok