1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 4239 OF 2003 IN FIRST APPEAL(ST.) NO. 3303 OF 2003 Mahavir Builder & Anr. ....Petitioners Versus Mandhar Damecha & Anr. ....Respondents Mr. Mahendra Agwekar i/b. Shri M. V. Limaye for the Petitioners. Mr. N. R. Sachdev for the Respondent No.1. CORAM : P. B. MAJMUDAR & R. V. MORE, JJ. DATED : 8th SEPTEMBER, 2009. P.C.: This is an application for condonation of delay of 1 year and 59 days occurred in filing the First Appeal. 2. The Respondent No.1 herein instituted a Suit being Special Civil Suit No.395 of 2000 for monetary claim with interest. The Petitioner No.1 is the Original Defendant No.1 i.e. the partnership firm and Petitioner No.2 is the Original Defendant No.2 i.e.partner of the said partnership firm in the said Suit. The summons for that suit was served upon the Petitioners herein and they had engaged an Advocate who had filed an Vakalatnama on their behalf but the Petitioners had not thereafter participated in the proceedings. The learned 2 Trial Judge passed a decree in favour of the Plaintiff and on the basis of the said decree, subsequently, the Plaintiff filed an execution application being Darkhast No.90 of 2002. The Petitioners’ who were the Original Judgment Debtors after receiving the notice of the execution proceedings filed this Appeal. According to the Petitioners, there is a delay of 1 year and 59 days, which is required to be condoned. 3. This Civil Application is vehemently opposed by the Respondent No.1. The learned Counsel for the said Respondent submitted that even though the Advocate was engaged, the Petitioners did not appear in the Trial Court during the pendency of the suit and and they have not even filed a written statement. We are of the view that the Petitioner was totally negligent as he allowed the suit to be decreed against him ex-parte and has not led any evidence. In fact he had engaged an Advocate but no attempt was made to file a written statement. After the execution proceedings were filed by the decree holder and after receiving a notice, at a belated stage the appeal is filed. It is pointed out by the learned Counsel for the Respondent No.1 that the property of the Petitioner is also put under attachment. The learned Counsel for the Petitioners states that the attachment is of society’s property and not the Petitioner’s property. 4. We have gone through the averments made in the Civil Application and we are convinced that no grounds are made out for condoning the delay. The Petitioner who is a builder did not participate in the suit and allowed the 3 suit to go ex-parte against him. It is required to be noted that even after engaging an Advocate in the Suit, he has not made any attempt to attend the suit and now he is trying to delay the execution proceedings by way of this Appeal. The delay is not properly explained. Not only that, the grounds mentioned in the Civil Application are not at all convincing. The Petitioner cannot be given any benefit of his own inaction and negligence and the Petitioner has tried to wake up from his slumber only after the execution proceedings were filed and notice was served upon him. We accordingly, do not find any substance in the application for condonation of delay as the grounds mentioned in the Civil Application are hardly convincing. In paragraph no.1 of the Application, the Petitioner No.2 has submitted that the Petitioners inadvertently could not understand true import of the notice of Special Civil Suit No.395 of 2000 and therefore could not attend the dates of the said Special Civil Suit nor could appoint an advocate to defend them. The Petitioners have made a false statement in the Civil Application that they could not appoint an Advocate to defend them, though it is not disputed that the Advocate was appointed. The learned Advocate for the Petitioners, tenders apology for making a false statement. Be that as it may, this is not a case in which delay is required to be condoned and no satisfactory reason is even given for the same. The Civil Application is devoid of any merits and as such the same is dismissed. Notice discharged. There shall be no order as to cost. Sd/- Sd/- (R. V. MORE, J.) (P. B. MAJMUDAR, J.)