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Judgment
. Rule. Rule made returnable forthwith.
By consent of the parties, matter is taken up for final disposal.
A suit filed in the year 2001 seeking declaration and possession on the basis of partition effected by father of the plaintiff and the defendants, came to be decreed in the year 2001 itself after hearing the parties.
Feeling aggrieved thereby, the defendants carried the judgment and decree in an appeal before the District Court vide Regular Civil Appeal No.98 of 2002. During pendency of the Regular Civil Appeal, the plaintiff died. Thereafter, even the appellant no. 5 therein is also died. No steps were taken on behalf of legal representatives of deceased appellant before the District Court to bring on record legal representatives of deceased appellant as also deceased respondent.
The record reveals that subsequently legal representatives of the plaintiff were sought to be brought on record. Suffice to note, learned District Judge pleased to reject the application at Exhibit-19 which was filed to bring on record legal representatives of deceased plaintiff.
Due to the death of appellant, the appeal was already abated as is observed in the order passed by the District Court on an application at Exhibit-19. Pertinent to note, the petitioners did not challenge the abatement nor applied for restoration of appeal. Ultimately, legal representatives of deceased defendant filed Miscellaneous Civil Application No.76 of 2018 before the District Court thereby praying for condonation of delay worth 03 years and 15 days and for setting aside the abatement order. It was the contention of the applicants therein that for want of knowledge of the Court proceedings, the applications could not be filed at earlier point of time. It was submitted that deceased defendant was karta of the family and used to look after the family affairs as also the affairs of the immovable properties. It was thus submitted that there was no fault on the part of the applicants. It was also contended that even the learned Advocates representing the deceased appellant did not inform them as to the procedure to prosecute the proceedings further.
It was also sought to be submitted that whether an affidavit needs to be filed with applications and whether a separate prayer has to be made for delay condonation or not was not within the control of the applicants who are farmers by profession. On this count, the applicants sought that the delay be condoned and abatement be set aside.
On the other hand, the decree holders have placed the execution proceedings in motion to have the fruits of the decree.
Regular Darkhast No.12 of 2016 was filed. Notices were issued and the matter reached till the stage of issuance of possession warrant. It is evident that while the execution proceedings were in motion, the applicants were well aware about the execution proceedings and the matters those were pending sometime at appellate stage. By exercising powers under Order 29 Rule 35 of the Civil Procedure code, the Executing Court issued possession warrant vide order dated 22.08.2019. Then the applicants expedited their proceedings for restoration of their appeal proceedings as per the prayers made in the applications. However, vide impugned order dated 17.03.2023, learned District Judge-2 Ambajogai, Dist. Beed pleased to reject the said application and hence the petitioners are before this Court.
The sole contention of the applicants/petitioners before this Court is that they were not aware of the proceedings filed or faced by their deceased father and that they were not informed timely by their legal advisor. It is submitted that the civil litigation must reach to its logical end and hence the petition be allowed.
On the other hand, it is submitted that the proceeding was never a bonafide one at the behest of the defendants’ side either in filing and keeping the appeal pending or in taking steps for restoration of the appeal.
It is pointed out that the order passed by District Court on an application below Exhibit-19 is not yet under challenge from the side of the petitioners. Submission made by learned Advocate for the petitioners that very soon the petitioners would challenge the order passed by the District Court on Exhibit-19 application itself shows intention of the petitioners. It is submitted that a person cannot take benefit of his own wrong. Failure to challenge the order passed on application below Exhibit-19 makes the subsequent application as also present prayers meaningless. That, if such concession is granted to the petitioners, the execution will be unnecessarily prolonged and justice will remain only on papers.
I find that the facts and the sequence of the evidence in the matter are undisputed. It is a matter of fact that the suit is of year 2001 and the decree is also of year 2001. Regular Civil Appeal was filed in the year 2002. The last order passed by the Appellate Court is of the year 2023. Meaning thereby, for no reason the appellate proceedings stood pending at the behest of the appellants/judgment debtors atleast for 21 years. In ordinary course, this Court would have been sloth in rejecting the prayers for restoration of cases. However, considering the nature of decree and particularly the delay resulted in execution of decree not merely for a year or two, but for almost 21 years, obviously and apparently at the behest of the petitioners.
The present Writ Petition does not appear to be a bonafide proceeding. The main order on Exhibit-19 is not yet challenged. Now readiness is shown to challenge that order. Had this request been genuine, the petitioners would have challenged the order much earlier. These are nothing but delayed tactics. The fate of all other proceedings initiated and sought to be initiated by the petitioners was thus subject to restoration of appeal by setting aside the abatement, which the petitioners have not done even till today.
The Hon’ble Supreme Court in Civil Appeal No.6525 of 2026 dated 23.04.2026 has strongly deprecated delay in execution proceedings, based on tactful objections raised by judgment debtors. Hence, this Court does not find the case fit to exercise jurisdiction under Article 227 of the Constitution of India. For the reasons recorded above, I am of the considered view that the petition fails. No case is made out for interference at the hands of this Court.
Writ Petition stands dismissed.