IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 47 OF 2009 MR. SHIVA SUBHAN GANDHI AND ANR., ... Appellants Versus MR. SUBAN S. GANDHI AND ANR., ... Respondents Mr. Rohit Bras De Sa,Advocate for the appellants. Shri S. D. Padiyar, Advocate for the respondents. Coram:- A. P. LAVANDE, J. Date:- 15th November, 2010 P.C. Heard Mr. De Sa, learned Counsel for the appellants and Mr. Padiyar, learned Counsel for the respondents. 2. This Second Appeal is preferred against the order dated 24th March, 2009 passed by the Additional District Judge-II, South Goa, Margao in Civil Miscellaneous Application No.23/2009 dismissing the application for condonation of delay of 3 years 9 months and 25 days in preferring appeal against the judgment and decree dated 17th August, 2007 passed by the Civil Judge Junior Division, Vasco-da-Gama in Regular Civil Suit No.116/2003/C. 3. According to the appellants- the defendants in the said suit, they were not aware of the decree dated 17th August, 2007 since the parties had earlier entered into the Memorandum of Understanding (MOU) and the appellants believed that the suit would be disposed of in terms of the said MOU. 4. According to the appellants, they came to know about the ex-parte decree for the first time on 13th May, 2008. 5. The appellants initially preferred an application under Order IX, Rule 13, C.P.C. along with an application for condonation of delay for setting aside ex-parte decree, which was dismissed by the Trial Court. Writ Petition No.630/2008 preferred by the present appellants challenging the order passed by the Trial Court dismissing an application for condonation of delay, was dismissed by the learned Single Judge of this Court by judgment and order dated 13th January, 2009. Thereafter, in the month of January itself, the appellants preferred First Appeal along with an application for condonation of delay, which was dismissed by the impugned order. 6. Mr. De Sa, learned Counsel appearing for the appellants submitted that the Lower Appellate Court has failed to consider that the appellants have made out sufficient cause for condoning the delay. According to Mr. De Sa, certain instructions were not given to him while arguing the writ petition filed by the appellants against the order passed by the Trial Court refusing application seeking condonation of delay in filing application under Order IX, Rule 13, C.P.C. According to Mr. De Sa, the Lower Appellate Court has exercised jurisdiction illegally while refusing to condone delay in preferring the appeal. 7. Mr. Padiyar, learned Counsel for the respondents placing reliance upon the judgment of the Apex Court in the case of Bhanu Kumar Jain Vs. Archana Kumar and another; (2005)1 SCC 787, submitted that the appellants ought to have filed an appeal challenging the ex-parte decree soon after they came to know about the ex-parte decree and ought not to have waited for decision on the application under Order IX, Rule 13, C.P.C. or decision of this Court in Writ Petition preferred against the said order. Mr. Padiyar submitted that the appellants are guilty of gross laches and, therefore, no case is made out for interference by this Court with the impugned order. 8. Having heard the learned Counsel for the parties and having perused the record, I find that the Lower Appellate Court has not exercised jurisdiction illegally while passing the impugned order. As held by the Apex Court in Bhanu Kumar Jain's case (supra), the appellants could have filed First Appeal against the ex-parte decree along with an application for condonation of delay and it was not necessary for them to wait either for the decision of the Trial Court on the application for condonation of delay or for the decision of this Court in Writ Petition preferred against the order passed by the Trial Court refusing to condone the delay. Therefore, in my considered opinion, the Lower Appellate Court was justified in refusing to condone the delay in as much as no sufficient case was made out by the appellants for condonation of delay and moreover, the period of condonation of delay sought was of substantial period for which there was no justification. In any case, no substantial question of law is involved in this appeal. 9. In the result, therefore, I do not find any merit in the Second Appeal and the same is, accordingly, dismissed. A. P. LAVANDE, J. SMA