High Court

Legal Reasoning

1 of 10 201-SA.243.2025-JIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.243 OF 2025WITHCIVIL APPLICATION NO.6624 OF 20251.Nandkumar Narayanrao Shivalkar,2.Vivek S/o Nandkumar Shivalkar. … AppellantsVersus 1.Sanju Marichand @ Marchand Ubale(Died Through Legal Heirs)1/1. Pallavi d/o Sanju Ubale, 1/2.Shrikant S/o Sanju Ubale, 2. Jathindhar @ Balu S/o Marichand @ Marchand Ubale,3. Adnianbai w/o Marichand @ Marchand Ubale,4. Marichand @ Marchand Eknath Ubale,4/1. Shankar S/o Marichand @ Marchand Ubale,4/2. Urmila W/o Sidram Bhise,4/3. Surekha W/o Sanjay Motale,4/4. Lata W/o Dilip Shinde, 4/5. Sudhamati w/o Marichand @ Marchand Ubale, 5.Laxmibai W/o Marichand @ Marchand Ubale, (Died),6.Dondiram s/o Bali. … Respondents…Mr. Pratap P. Mandlik, Advocate for the Appellants. Mr. G. L. Deshpande, Advocate for Respondent Nos.1/1, 1/2 and 3. … 2 of 10 201-SA.243.2025-JCORAM : SHAILESH P. BRAHME, J.DATE :2nd JULY, 2025P.C.:-1.Heard Mr. Pratap Mandlik, learned Advocate for theAppellants and Mr. G. L. Deshpande, learned Advocate for RespondentNos.1/1, 1/2 and 3. 2.This appeal is circulated for urgent admission showingexigency that tomorrow is the date scheduled by the Circle Officer,Ausa for handing over possession as per decree passed by the CivilCourt. 3.This appeal questions judgment and decree dated 07.07.1972passed in Regular Civil Suit No.190 of 1971 as well as order dated03.05.2024 passed by learned District Judge, Latur refusing to condonethe delay and thereby rejecting Civil Miscellaneous Application (Delay)No.16 of 2023. Appellants were not party to the suit, but they arepurchaser of part of suit land from Respondent No.4 and RespondentNo.4/1. Respondent Nos.1 to 3 are Original Plaintiffs, whereasRespondent Nos.4 to 6 are Original Defendants. 4.Regular Civil Suit No.190 of 1971 was filed for partition andpossession in respect of Survey No.124/B, admeasuring 8 Acre 33Guntha, situated at village Bhada and a house property. The 3 of 10 201-SA.243.2025-Jcontroversy interalia between the parties to the suit was thatRespondent No.4-Marichand @ Marchand Eknath Ubale was havingtwo wives; namely, Respondent No.3-Adnianbai and Respondent No.5-Laxmibai. Plaintiffs were denied their share being offsprings of voidmarriage. It was decreed on 07.07.1972 awarding 3/4th share in thesuit land and suit house. Matter was referred to the CompetentAuthorities for effecting shares. The decree passed by the Trial Courtwas not challenged by Respondent Nos.4 to 6, who were parties in thesuit. Thereafter, Respondent Nos.4 and 4/1 sold part and parcels of thesuit land to the present Appellants vide sale deeds dated 21.10.2004,25.05.2005 and 19.01.2006. The details of which are mentioned in thememo of M.C.A No.16 of 2023. 5.It’s a case of the Appellants that decree of partition was putto execution in 2003 in Regular Darkhast No.74 of 2003. In 2006, theylearnt about it. Their vendors did not disclose the decree passed by theCivil Court or the execution proceedings. They approached theExecuting Court by filing objection petition (Exhibit-38). Theirobjections were overruled. Being aggrieved, they preferred appealbefore District Court, then second appeal before High Court andultimately SLP before Apex Court, but could not get any relief. Inpursuance of the observations of High Court in Second Appeal No.726of 2009, they decided to file R.C.S. No.129 of 2010 against the 4 of 10 201-SA.243.2025-JRespondents. 6.In R.C.S. No.129 of 2010, application was submitted underOrder VII Rule 11 of the Code of Civil Procedure, 1908 (C.P.C.) by theDefendants therein and it was allowed. The decree of rejection ofplaint was challenged in R.C.A. No.192 of 2008. It was allowed on05.10.2023 by Lower Appellate Court, which resulted into filing ofsecond appeal by Respondents/decree holders. The appeal is pendingin the High Court.7.Appellants were advised to challenge the decree dated07.07.1972 and hence on 30.10.2023, appeal was filed along withM.C.A. No.16 of 2023 for condonation of delay. The Respondentsobjected the application for delay. Lower Appellate Court byimpugning order refused to condone the delay of 16 years, 7 monthsand 3 days, which is the cause for filing of present second appeal. 8.Mr. Pratap Mandlik submits that Ground Nos.B to E wouldconstitute substantial questions of law. It is submitted that Appellantshave elaborately narrated the sequence of event, which would besufficient to condone delay. There are no malafides on their part incausing delay. It is submitted that Appellants are bonafide purchasersfor value without notice and their vendors, who are presentRespondent Nos.4 and 4/1 kept them in dark regarding decree of civil 5 of 10 201-SA.243.2025-Jcourt and its execution. No sooner than they learnt about theexecution, they resorted to various remedies as advised to them. It issubmitted that length of delay is immaterial when detail grounds arementioned for condonation of delay. Liberal approach should havebeen taken by learned Judge. It is further submitted that the timespent in various litigation needs to be excluded by implication ofSection 14 of Limitation Act. Learned Advocate has placed reliance onthe judgment of Inder Singh Vs. The State of Madhya Pradesh1 andSayeed Ismail s/o. Sayeed Kasim & Ors. Vs. Ushadevi w/o. RajendraAnand2. 9.Mr. Gaurav Deshpande appearing for the Respondents repelsthe submissions of Appellants. It is submitted that Appellants areunsuccessful upto Supreme Court in their objection raised to theexecution of the decree. In that hierarchy, their claim is rejected onmerits by High Court in Second Appeal No.726 of 2009 as well as bythe Apex Court. It is further contended that in R.C.S. No.129 of 2010,their plaint has been rejected and emanating from those proceedings,second appeal is pending in the High Court. It is submitted thatAppellants have indulged in dilatory tactics and resorted to wrongremedies. It is contended that they could have approached AppellateCourt in time. It is submitted that execution was filed even prior to12025 LiveLaw (SC) 3392Writ Petition No.1474 of 2015 6 of 10 201-SA.243.2025-J2003. The Respondents are waiting for fruits of the decree for last 54years. It is further submits that even if decree is executed, no prejudicewould be caused to the Appellants because their vendors are likely toget share in the suit land. It is submitted that no substantial questionsof law is involved in the matter. 10.My attention is adverted by learned Advocate for theAppellants to the observations of learned Single Judge in SecondAppeal No.726 of 2009, which are as follows:-3] The questions as to whether Adnyanbai and her childrenwere entitled to decree or that whether the defendant Marchand,Laxmibai and Laxmibai's children comprised of the joint familyproperty being the legally wedded wife and legitimate children ofdefendant Marchand are beyond the scope of enquiry in executionproceedings. Probably, Laxmibai and her children and personsclaiming through them could have challenged the validity of thedecree in suit no. 190 of 1971 by filing an appeal. But if that wasnot done, such an objection based on such factual background tothe judgment and decree in suit no. 190 of 1971 is beyond thescope of enquiry under Order 20 Rule 97 of the Code of CivilProcedure etc. The appeal should therefore, fail. The SecondAppeal stands dismissed. 11.Admittedly, Appellants were not party to R.C.S. No.190 of1971, which was for partition and possession. Its decree dated07.07.1972 was not challenged by the parties to the suit. Executionwas filed in the year 2003. Part of the suit properties were transferredby Respondent Nos.4 and 4/1 vide sale deeds dated 21.10.2004,25.05.2005 and 19.01.2006. Passing observations referred above 7 of 10 201-SA.243.2025-Jcannot help Appellants. 12.The objections raised by the Appellants vide Exhibit-38 in theexecutions were overruled on merits by the Executing Court and thesaid order was confirmed upto Supreme Court by passing order dated22.10.2010. After suffering the adjudication, Appellants could haveapproached the Appellate Court challenging decree dated 07.07.1972,but they resorted to R.C.S. No.129 of 2010. Even after rejection ofplaint, they could have filed appeal, but they preferred to file appeal,albeit, they were successful in that. There is a delay of more than 54years in challenging decree dated 07.07.1972. If the delay is to bereckon from their knowledge occurred in 2006, then it is delay of morethan 16 years. 13.The delay is inordinate and is not condonable on preciousreason that they were not being advised properly and they wereprosecuting the remedies before wrong forum, bonafide. Meresequence of the events or the persuasion of remedies by the Appellantswould not enure to their benefit. Neither would that be treated assufficient cause. They went on taking chances. It has not been shownthat remedies availed by Appellants failed due to defect of jurisdictionor other cause of like nature. 14.It is not brought on record as to what steps they have taken 8 of 10 201-SA.243.2025-Jagainst their vendors, who failed to disclose the previous litigation.The decree holders cannot suffer because of judgment debtors/vendorsovertact. The Respondents/decree holders are waiting for the fruits forconsiderable period. It would be their legitimate expectation toconclude the litigation at some point of time. This aspect of the mattercannot be lost sight of. The over stretched sympathy and liberalapproach cannot be adopted in the present case. 15.Considering the various remedies undertaken by theAppellants and that too in the wrong forum, there is every reason toinfer that those are the dilatory tactics undertaken to deprive thedecree holders from the fruits of the decree. The Appellants are inpossession. I do not find any perversity or illegality in the findingsrecorded by the Lower Appellate Court. 16.It is relevant to notice that Section 14 of the Act is coachedwith a rider that to exclude the period, the remedy should have beenprosecuted in good faith in a court, which from defect of jurisdiction orother cause of a like nature would unable to entertain it. There isabsolutely no material placed on record to show that Appellants wereunsuccessful before various forums due to defect of jurisdiction orother cause of a like nature. On the contrary, Appellants sufferedadjudication on merits. 9 of 10 201-SA.243.2025-J17.In that view of the matter, I am of the considered view thatno benefit of Section 14 of the Act can be extended to the Appellants.The stray observations of the learned Single Judge in Second AppealNo.726 of 2009 would not give any cause of action to challenge thedecree and those observations would not help the Appellants forcondonation of delay. The liberal approach in the present matterwould lead to misplaced sympathy to the defaulting Appellants.Present second appeal has also not been prosecuted diligently. It wasdismissed for non-removal of office objections vide order dated09.10.2024. Albeit the same was subsequently restored yesterday only.18.Learned Advocate for the Appellants placed reliance onjudgment of Inder Singh Vs. The State of Madhya Pradesh (supra) tobuttress that liberal approach should be adopted in condoning thedelays, when limitation undermines the merit. My attention is divertedto paragraph Nos.14, 16 and 17 and case law interalia discussed inthem. The principles laid down therein cannot be doubted. Merelength of delay is not significant. I have already recorded findings thatit is not possible to adopt liberal approach in the present matter in thecontext of peculiar facts and for want of bonafides on part of theAppellants. This judgment would not help the Appellants. 19.Reliance is placed on Sayeed Ismail s/o. Sayeed Kasim & Ors. 10 of 10 201-SA.243.2025-JVs. Ushadevi w/o. Rajendra Anand (supra). In the reported judgment,delay was caused for making application under Order IX Rule 13 ofC.P.C. The Defendants had suffered a decree, which he learnt onlywhen execution was filed. He preferred objection petition inexecution, which was overruled and the same was sustained up to HighCourt. Thereafter, with application for condonation of delay, recoursewas sought to order IX Rule 13 of C.P.C. Thereafter, matter travelledtwice to the High Court. Ultimately, the delay was condoned. It wasconfirmed by the High Court. In the case at hand, the Appellants are inpossession of part of the suit land and from 2006, they resorted tovarious remedies and suffered rejection on merits. The proceedingsstarted in the year 1971 has not been finalised till today is thedistinguishing factor. Therefore, this judgment also will be of no helpto the Appellants. 20.For the reasons stated above, I find that no substantialquestions of law is involved in this appeal. 21.Second appeal is dismissed with costs. 22.In view of dismissal of second appeal, civil application doesnot survive and it is also dismissed. (SHAILESH P. BRAHME, J.)Tauseef