1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 378 OF 2010 Sambhaji W/o Manikrao Fegade .... APPELLANT V E R S U S Sitaram S/o Changoji Fegade .... RESPONDENT Mr. S.P.Katneshwarkar , Advocate for appellant Mr. S.R.Bagal, Advocate for respondent. ............................ CORAM : S.V. GANGAPURWALA, J. DATE: 07/09/2010 ORAL ORDER : 1. The present respondent had instituted Suit for possession on the ground that the defendant had encroached over the area of 7 R. land. The said Suit was contested by the present appellants/original defendants. The Jt. Civil Judge (J.D.), Beed vide its Judgment and Decree dated 3/5/2003 decreed the Suit and held that the defendants have encroached the area of 7 R. land of G.No. 34 and the defendant was directed to put the plaintiff in actual possession and the said area. After the said Judgment was passed, the present appellant did not prefer any Appeal. The defendants were served with the notice in execution. The appellants/Judgment debtors appeared in the said execution proceedings through Advocate and contested the same. Thereafter the present appellants filed Appeal on or about August, 2009 challenging the Judgment and Decree dated 3/5/2003. The Adhoc District Judge – 1, Basmathnagar on 27/1/2010 rejected the 2 application of the defendants for condonation of delay of 6 years, 3 months and 27 days. The said order is assailed by the appellant in the present appeal. 2. Mr. Katneshwarkar, the learned counsel for the appellant submitted that the appellants are illeterate and rustic persons coming from rural area. He has further contended that it was on the basis of the wrong advise, the present appellant did not prefer appeal and had participated in the execution proceedings. Mr. Katneshwarkar submits that the matter involves invaluable rights of the applicants in the immovable property. The Judgment and Decree passed by the trial Court suffers from patent illegality in as much as for determining the encroachment, both the lands are required to be measured and the land of the present appellant was never measured. He has further contended that if the delay is not condoned, the appellant would suffer irreparable loss. 3. Per contra, the learned counsel for the respondent submits that the present appellants are guilty of gross delay and laches. The delay which is caused, is intentional one. It is not the case that the proceedings before the trial court has proceeded exparte. The proceedings were contested by the present appellants and thereafter the decree came to be passed. Even the present appellants have appeared before the executing Court and had contested the execution proceedings by engaging the lawyer. The application filed by the present appellants for condonation of delay is bereft of particulars as to what wrong advise is given by the Advocate ? 4. The record shows that after the Judgment and Decree was passed by the trial Court, the Judgment debtors appeared before the executing Court on 11/01/2005 and had contested the proceedings. They 3 have also engaged the Advocate and were prosecuting the said execution proceedings. A decree for possession has been passed against the present appellants. Thus, the appellants were to gain by the delay. Even if it is accepted that the present appellants are illeterate persons and they do not have legal knowledge, still on notice in the execution proceedings, they had appeared in the said proceedings and had contested it. Even in the application, no details are given as to what was the wrong advice that was given by the learned counsel for the petitioner. 5. Though it is trite law that the application for condonation of delay has to be liberally construed, still the record before the Court is such that no sufficient cause, even if interpreted liberally, can be spelt out. The Adhoc District Judge while rejecting the application, has come to the conclusion that the applicants are coming up with false case before the Court. The present respondent though has got decree in his favour in the year 2003, has not been in a position to execute it, because at the first instance the appellant had prosecuted the execution proceedings and consequently the appeal. 6. In light of the above, no substantial question of law arises and as such the Second Appeal is dismissed. However, there shall be no order as to costs. [ S.V. GANGAPURWALA, J. ] knp/ SA 378.2010