1 (CAS 578 of 2008) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 578 OF 2008 IN SECOND APPEAL (ST) NO.25376 OF 2007 Bhiku Pandu Vikari since deceased through LRs. Dashrath Bhiku Vikari and Ors. ...Applicants Vs. Vidya Prasarini Sabha and Ors. ...Respondents ----- Mr.P.B. Shah for Appellants Mr.S.N.Chandrachood for Respondent nos.2 to 4 and 7,8,9 ----- CORAM: V.M. KANADE J. DATED: 1st July, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Applicants and the Respondents. 2. This is an application for condonation of delay of 1022 days in filing the Second Appeal. In the present case, an admitted position is that the Applicants are the Original Tenants and the Respondents are the Original Landlords- Trust. A suit was filed by the Trust seeking possession of the suit land. The said suit was dismissed. Therefore an appeal was filed by the Trust, which appeal was allowed in October, 2004. The decree was executed on 26.4.2006 and the second appeal was filed on 25th 2 (CAS 578 of 2008) August, 2008. Therefore, there is a delay of almost three years in filing the second appeal. It is contended in the application for restoration that the Applicants became aware of the judgment and order passed by the Appellate Court only after the execution of the decree. It is submitted that since the Applicants are illiterates, they could not take any steps for filing the second appeal in time. It was submitted that on 1.4.1957, the Applicants were tenants in respect of the suit property and, therefore, they being the deemed purchasers of the suit property. A certificate under section 88B could not have been issued in favour of the Trust in 1964. It was submitted that the Applicants, therefore, have a good case on merits and in the interest of justice, the delay may be condoned. 3. On the other hand, the learned counsel appearing on behalf of the Respondents submitted that the Applicants had made an incorrect statement that they came to know about the order passed by the Appellate court only after the execution of the decree. The learned counsel for the Respondents invited my attention to the affidavit in reply. He submitted that the appeal was allowed and an intimation was given to the Applicants about the execution proceeding which was duly served on them. Thereafter, again for the second time, 3 (CAS 578 of 2008) execution proceeding was again served on the Applicants therein. It was submitted that in the execution proceeding, the son and sister of the Applicants obstructed the execution of the decree and the obstruction was rejected. Thereafter, the decree was executed in 2006. Even thereafter, for a period of one year, no steps were taken. It was submitted that event at the time of execution of the decree, police protection had to be taken by the decree holder. It was submitted that, therefore, there is a gross and unexplained delay in filing the second appeal. It was further submitted that after the second appeal was filed, the Applicants challenged the certificate which was issued under section 88C in favour of the Respondents. The said Writ Petition was also dismissed on the ground of delay of 27 years in challenging the certificate and also on merits. It was submitted that even the Letters Patent Appeal also was dismissed. 4. After having heard both the counsel at length on the point of condonation of delay, taking into consideration the submissions made by the learned counsel appearing on behalf of the Respondents and after having gone through the affidavit in reply filed by them, it is apparent that the Applicants were very well aware of the judgment 4 (CAS 578 of 2008) and order passed by the Appellate Court and yet no steps were taken to file the Second Appeal. Even after the decree was executed, for a period of one year, no steps have been taken. 5. Under these circumstances, the Applicants have not been diligent in approaching this Court and have suppressed the material facts from this Court. Civil Application is, therefore, dismissed and disposed of. Civil Application for stay does not survive and is also disposed of. (V.M. KANADE J.)