JUDGMENT : H.P.SANDESH, J. 1. This matter was listed for admission on 23.10.2025 and this Court heard the matter for sometime and the learned counsel for the appellant sought time going to discuss the matter with his client and counsel for the respondent also submits that issue can be sorted out by negotiation and hence, this Court adjourned the matter to 25.10.2025, and the counsel for the caveator/respondent No.1 and 2 made the submission on 25.10.2025 that the learned counsel for the appellant's brother suffered heart attack and admitted to hospital and hence, this Court adjourned the matter to 07.11.2025 and on 07.11.2025, both counsel for respective parties made the submission that there is an element of settlement in the matter and this Court made it clear that if no settlement in the matter, both the counsels are directed to argue the matter on the next date of hearing without fail and posted the matter to 24.11.2025 and on 24.11.2025 both counsels submits that there is an element of settlement and once again adjourned the matter to 01.12.2025. This Court heard the Senior Counsel on 01.12.2025 and again counsel for the appellant made the submission that he will discuss with client once again and also furnishes two citations and same is taken on record. Now, new counsel argued the matter in length till 1.21 p.m., without his Vakalath on record and even not sought permission of this Court. This Court heard the matter and counsel submits that he has filed the Vakalath in the Registry, but no acknowledgment is produced to that effect before the Court for having filed Vakalath and on verification also not yet filed Vakalath. 2. The main contention of the counsel before this Court that both the Courts have committed an error and submits that the judgment and decree is obtained by playing fraud before the Trial Court and contend that though this appellant has been arraigned as defendant No.4 and no service of notice and he was placed ex-parte and judgment is obtained and Trial Court passed an order that sale dated 20.10.2023 executed by defendant Nos.1 to 3 through their attorney in favour of 4 th defendant is not binding on the plaintiff and granted the relief of plaintiff is entitled for 1/4 th share in the suit schedule property by metes and bounds. 3. 3. The counsel submits that being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in R.A.No.112/2022 before the First Appellate Court. The counsel would vehemently contend that the First Appellate Court has not considered the matter on merits and only taken note of that there was a delay of 10 years, 4 months, 18 days in filing this first appeal before the First Appellate Court and the same has not been satisfactorily explained. The counsel also brought to notice of this Court the First Appellate Court proceeded in an erroneous approach and though considered the point for consideration whether the Trial Court has committed an error in holding that the plaintiff has failed to establish and proved the burden casts upon her and whether the impugned judgment is erroneous, perverse, illegal, capricious and resulted in miscarriage of justice, warranting interference by this Court, and also whether the delay caused in filing the appeal has been satisfactorily explained in order to condone the delay, but not considered the Point Nos.1 and 2 and proceeded to pass an order only on the Point No.3. Even the Trial Court extracted Article 116 and 123 of the Limitation Act while passing an order and discussed that prescribed time limitation is 30 days or 90 days as the case may be and the time begins from the date of judgment and decree. The very approach of the First Appellate Court is erroneous and ought not to have dismissed the suit on the ground of limitation. The counsel in his argument would vehemently contend that the very approach of both the Courts is erroneous and it leads to miscarriage of justice. 4. The counsel in support of his argument relies upon 17 citations in number and relies upon particularly the judgment of this Court reported in MANU/KA/1131/2023 passed in R.S.A.No.100157/2016 in case of Gundappa and Others V/s Topanna wherein there is a delay of 865 days in filing the appeal. The counsel also brought to notice of this Court paragraph No.10 and so also paragraph No.14 wherein the judgment and decree of the Trial Court was challenged by the defendants with the delay of 865 days. When the appeal was filed before the First Appellate Court there was a delay of 865 days in filing the appeal. The counsel also brought to notice of this Court paragraph No.10 and so also paragraph No.14 wherein the judgment and decree of the Trial Court was challenged by the defendants with the delay of 865 days. When the appeal was filed before the First Appellate Court there was a delay of 865 days in filing the appeal. The reasons assigned by the appellants for the delay in preferring the appeal is on the ground of fraud having been committed and First Appellate Court dismissed on the ground of delay by invoking Section 5 of Limitation Act pressing into service and benefit of Section of 17 of Limitation Act. 5. The counsel also relied upon the judgment of the Apex Court reported in MANU/SC/1601/2019 in case of N.Mohan V/s R.Madhu wherein discussed with regard to condoning the delay of 276 days in filing the appeal under Order 9 Rule 13 of CPC to set-aside the exparte decree and discussed with regard to application for condonation of delay of 546 days in filing the appeal and the same was dismissed by the High Court on the ground that the same reasons are stated and brought to notice of this Court paragraph No.9 with regard to the remedy available to file a regular appeal from the original decree to the First Appellate Court in terms of Section 96(2) of CPC and challenge the ex-parte decree on merits and also brought to notice of this Court paragraph Nos.14, 15 and 16 wherein particularly taken note of only 276 days delay. 6. The counsel also relied upon the judgment of the Apex Court reported in MANU/SC/0843/2021 in case of Yashwantrao Bhaskarrao Deshmukh V/s Raghunath Kisan Saindane wherein delay of 650 days in filing the second appeal discussed in paragraph Nos.13, 14 and 16 wherein the Apex Court condoned delay of 650 days. 7. The counsel also relied upon the judgment of the Bombay High Court (Aurangabad Bench) reported in MANU/MAHAZAR/1641/2017 in case of Udhav Baliram Adawale V/s Babruwan Papanarsh Gaikwad and the counsel brought to notice of this Court paragraph No.14 the Sub-Rule(5) of the Rule 9 of Order 5 which provides that in certain cases the Court shall declare that the summons has been duly served significantly does not cover a case where the summons or notice issued through RPAD returned with remark ‘unclaimed’. The counsel brought to notice of this Court while substituting Rule 9 of Order V of the said Court, though the legislature has expressly provided that if a postal article containing the summons is received back with an endorsement of refusal, same shall be treated as good service. The counsel referring this judgment would vehemently contend that the respondent had obtained the judgment and decree by playing fraud on the appellant and hence, this Court has to take note of all these factors into consideration while considering this matter for admission and frame substantive question of law. 8. Per contra, the counsel appearing for the respondents would vehemently contend that while filing the suit in O.S.No.457/2009, the address mentioned in respect of the appellant is concerned, that is last known address and the sale deed under which he had purchased the property is also the very same address and hence, in respect of the very same address, suit was filed and notice was also taken through Court as well as registered post and the notice sent through registered post was returned with an endorsement ‘unclaimed’ and thereafter only, the Trial Court placed him as ex-parte. The counsel also submits that afterwards 4 or 5 dates of hearing was given for appearance of defendant No.4 before the Trial Court and even though the defendant Nos.1 to 3 represented through their counsel, they did not chose to contest the matter and hence, the Trial Court passed the judgment granting the relief of partition in respect of the plaintiff. 9. The counsel would vehemently contend that the judgment and decree of the Trial Court was passed on 04.08.2012 and the first appeal was filed in the year 2022 before the First Appellate Court that is after lapse of 10 years. 9. The counsel would vehemently contend that the judgment and decree of the Trial Court was passed on 04.08.2012 and the first appeal was filed in the year 2022 before the First Appellate Court that is after lapse of 10 years. The counsel also brought to notice of this Court, a false affidavit filed before the First Appellate Court and counsel who appears before this Court only appeared before the F.D.P Court and the F.D.P Court also issued the notice and the same has been served on the appellant in the year 2019 itself and undertaken to file the Vakalath on 13.12.2019 and Vakalath was filed on 07.03.2020 and the first appeal is filed on 22.11.2022 and the averments made in paragraph No.3 of the affidavit, except stating that he came to know about only in the year 2021 and the same is also a false reason and nothing is stated in the affidavit and nothing is pleaded in the affidavit with regard to the fraud or any change of address and fraudulently obtained the decree. 10. The counsel would vehemently contend that when the appeal is filed before the First Appellate Court, nothing is stated with regard to the fraud played as argued before this Court. The counsel also brought to notice of this Court certified copy of the appeal memo and contend that nowhere it is stated that fraudulently obtained the decree by furnishing any false address and also counsel submits that before the First Appellate Court also nothing is substantiated and even not produced any document or not pleaded anything before the First Appellate Court with regard to the fraud is concerned and for the first time, that too in the second appeal, argument is made before this Court about the fraud. Hence, the Trial Court considering the material on record, comes to the conclusion that ought to have filed the appeal before the First Appellate Court within a period of limitation and the same has not been filed and also not substantiated the delay for filing the appeal. Hence, the Trial Court considering the material on record, comes to the conclusion that ought to have filed the appeal before the First Appellate Court within a period of limitation and the same has not been filed and also not substantiated the delay for filing the appeal. Even after having the knowledge about the judgment and decree of the Trial Court, even assuming that he came to know about the judgment and decree in the year 2019 when he has undertaken to appear, not filed the appeal within time and sufficient cause is not shown before the First Appellate Court and hence, First Appellate Court considering the delay of 10 years, 4 months, 18 days, rightly dismissed the appeal and hence, no ground is made out to admit and frame substantive question of law. 11. Having considered the submission of appellant’s counsel and the counsel appearing for the respondents and also considering the material available on record, this Court has to take note of the factual aspects of the case. The factual aspects of the case is that plaintiff has filed the suit challenging the judgment and decree, praying the share in the suit schedule property and also property was sold in the year 2003 and she was not a party to the said sale transaction and hence, sought for the relief of partition as well as the sale deed executed by the defendant Nos.1 to 3 is not binding on the plaintiff. The material also discloses that this appellant is arraigned as defendant No.4 and also notice was issued against the appellant through Court as well as through RPAD. The notice sent through RPAD was returned with an endorsement ‘unclaimed’. Though the counsel appearing for the appellant in his argument would vehemently contend that he had changed the address but not disputes the fact that the address mentioned in the sale deed is same as the address in the plaint. In order to prove the factum that he had changed the address subsequent to the purchasing of the property is concerned and even in the First Appellate Court also not placed any record before the Court for change of address is concerned. Now, the counsel would vehemently contend that Section 17 of the Limitation Act attracts for filing of the appeal and 3 years from the date of discovery of the fraud played. Now, the counsel would vehemently contend that Section 17 of the Limitation Act attracts for filing of the appeal and 3 years from the date of discovery of the fraud played. But, the said contention cannot be accepted and the same is only in case of any fraud that too for filing of a suit, Section 17 of Limitation Act says, Section 17 is very clear that if any fraud is played in obtaining the decree, it can be challenged and for application for which limitation is prescribed by the Act in the suit or application is based upon the fraud of the defendant or respondent or his agent and also even Section 17(1)(a) to 17(1)(d) also discloses that the suit or application is based upon the fraud of the defendant or respondent or his agent; or the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or the suit or application is for relief from the consequences of a mistake; or where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production and the same has not been done before the First Appellate Court. Even there is no any pleading in the appeal as well as in the application, except stating that he came to know about the same in the year 2021. But, the fact is that the appellant’s counsel who appears before this Court also admits that undertaken to file Vakalath on 13.12.2019 and Vakalath was also filed on 07.03.2020 before the FDP proceedings. But, when the appeal was filed in the year 2022, in paragraph No.3 of the affidavit, it is stated that only in the year 2021, he has received the notice from the FDP Court then he came to know about the judgment and decree and the same falsifies the very contention taken by the appellant’s counsel before this Court and the same is typographical error. 12. 12. It is also important to note that the counsel also not disputes the fact that Vakalath was filed and even also undertaken by the very same advocate before the FDP Court and appellant is also having the knowledge about the same. Even counsel also having the knowledge about the judgment and decree in the year 2019 itself and false affidavit is filed that they came to know about the same in the year 2021 and even in the affidavit, it is also not stated the date on which they came to know about the same. But, even the appeal is filed on 22.11.2022 almost about 3 years from the date of knowledge and hence, when there is no any pleading with regard to the fraud is concerned either in the affidavit or in the appeal also, now the appellant’s counsel cannot contend that there is a fraud. 13. The counsel also relies upon several judgments with regard to the service of notice is concerned and even assuming that there was no proper service, when the same came to the knowledge of him, ought to have filed the appeal within time and also it has to be noted that the judgment of the Trial Court was passed on 04.08.2012 and an appeal is filed almost after lapse of 10 years. The First Appellate Court while considering the delay, taken note of delay of about 10 years, 4 months, 18 days and even not filed the appeal from the date of knowledge either from 30 days or 90 days before the First Appellate Court and even there was a delay of almost 3 years after he came to know about the same also. The counsel appearing for the appellant would submits that there was a COVID-19 pandemic and even considering the same for filing the appeal before the First Appellate Court, that is also very bald and even not stated anything about COVID-19 pandemic was in force from 2020 and nothing is stated in respect of the COVID-19 impact also. Even after lifting of the COVID-19 impact also, the appeal is not filed within the time and even there was an inordinate delay. 14. Even after lifting of the COVID-19 impact also, the appeal is not filed within the time and even there was an inordinate delay. 14. No doubt counsel appearing for the appellant brought to notice of this Court judgment of the Apex Court in condoning the delay of 276 days and also 546 days, the Apex Court also taken note of the fact that actual delay was 276 days when the proceedings was invoked under Order 9 Rule 13 of CPC and when the same was not set aside and ultimately not condoned and filed, an appeal under Order 41 Rule 1 r/w Section 96 of CPC and the delay of 546 days was condoned and no doubt in another judgment 650 days is condoned. But, in the case on hand, nothing is pleaded before the Appellate Court with regard to the fraud is concerned. When the fraud is asserted, it requires the details under Order 6 Rule 4 of the CPC and there must be a pleading to the effect that there was a fraud, but nothing is pleaded before the First Appellate Court and also before this Court with regard to the fraud is concerned. For the first time before this Court, pressing into the service of fraud by invoking Section 17 of the Limitation Act and when there was an inordinate delay of 10 years, 4 months and 18 days in filing the First appeal before the First Appellate Court and the Appellate Court not committed any error in dismissing the appeal. 15. It is also settled law that while condoning the delay, the party must show the sufficient cause for condonation of delay and also there must be an explanation, but, in the case on hand, instead of pleading the true facts before the First Appellate Court, the appellant has pleaded falsely before the First Appellate Court and the same has been came to knowledge in the year 2021. Even though having the knowledge about the same and undertaken to file Vakalath on 13.12.2019 and also Vakalath was filed on 07.03.2020, pleaded false facts in the affidavit before this Court and also false affidavit before the First Appellate Court and played the fraud on the Court in filing such an affidavit and the person who approaches the Court without clean hands, cannot get the relief of discretionary relief before the Court. 16. 16. It is also important to note that the very advocate had the knowledge about the same and also undertaken to appear and also filed the Vakalath in the year 2019 and he himself prepated the false affidavit before the First Appellate Court stating that he came to know about the same in the year 2021 and not only the appellant had the knowledge, even advocate also had the knowledge. The counsel argues the matter before this Court for more than an hour without having any Vakalath and not only played the fraud on the Court by the appellant and even by the advocate making false ground with consciously and hence, this second appeal is dismissed with exemplary cost of Rs.5,00,000/- (Rupees Five Lakhs only) payable at the Registry within two weeks and the cost shall vest with the State, since the counsel as well as the party who is lethargic in filing an appeal that too after lapse of 10 years before the First Appellate Court and even not satisfactorily explained the same and hence, the Apex Court in the recent judgment of 2025 in Shivamma’s case in paragraph Nos.140, 141 and 142 categorically held that unless the delay is explained and sufficient cause is shown, not to consider the matter on merits and the Apex Court in detail discussed the same and held that lethargic person cannot approach the Court when there was an inordinate delay and hence, it is a fit case to dismiss the same with exemplary costs. If the cost is not paid within two weeks from today, the Registry is directed to recover the same from the appellant.