1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL CIVIL CIVIL APPLICATION NO.3661 of 2004 APPLICATION NO.3661 of 2004 APPLICATION NO.3661 of 2004 IN IN IN FIRST FIRST FIRST APPEAL ST.NO. 26146 of 2004 APPEAL ST.NO. 26146 of 2004 APPEAL ST.NO. 26146 of 2004 WITH WITH WITH CIVIL CIVIL CIVIL APPLICATION NO. 2095 of 2008 APPLICATION NO. 2095 of 2008 APPLICATION NO. 2095 of 2008 IN IN IN CIVIL CIVIL CIVIL APPLICATION NO.3661 of 2004 APPLICATION NO.3661 of 2004 APPLICATION NO.3661 of 2004 IN IN IN FIRST FIRST FIRST APPEAL ST.NO. 26146 of 2004 APPEAL ST.NO. 26146 of 2004 APPEAL ST.NO. 26146 of 2004 Shivprasad S. Kalwar & ors. .. Applicants versus Satnarayan N. Pasi & ors. .. Respondents ... Mr.S.K. Sthalekar for the applicants. Mr.Sanjiv A. Sawant for the respondents. CORAM CORAM CORAM : D.G. KARNIK, J : D.G. KARNIK, J : D.G. KARNIK, J DATED DATED DATED : 2nd December 2008 : 2nd December 2008 : 2nd December 2008 P.C.: 1. Civil Application no.3661 of 2004 is filed by the applicant for relief of injunction. Civil 2 Application no.2095 of 2008 is taken out by respondent for vacating the order of status quo passed by this court on the ground that it was passed ex-parte and without hearing him. Hence both the applications are heard together. 2. The appeal arises out of a suit, bearing no.2575 of 1989 filed by the appellants for a declaration that the ex-parte decree passed in Suit no.467 of 1972 and order dated 22nd February 1998 passed in Miscellaneous Notice of Motion no.102 of 1986 were null and void and not binding on them and for an injunction restraining the respondents from executing the decree. The suit was dismissed and after the dismissal of the suit the present appeal was filed along with an application for condonation of delay. Therein, the present application no.3661 of 2004 was filed for an injunction restraining the respondents on executing the decree. This court while issuing of a rule granted ex-parte ad-interim order directing the parties to maintain status quo. After hearing the parties, now it is necessary to consider whether the appellants have made out a strong prima facie case for grant of relief of injunction and/or status quo. 3. Suit no.4677 of 1972 was heard and decided 3 ex-parte on 14th September 1981. The appellants had two remedies against the said decision. They could have filed an application under Order 9 Rule 13 of the Code of Civil Procedure or could have filed an appeal. The appellants chose first course and filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside of the ex-parte decree by taking out Miscellaneous Notice of Motion no.102 of 1986. Copy of the Notice of Motion is not on record. However, learned counsel for the applicant states that the Notice of Motion was taken out for setting aside the ex-parte decree. That Notice of Motion was dismissed on 20th February 1988. No appeal was filed against the order of dismissal and the order of dismissal has become final. After a long lapse of time thereafter the appellants filed a separate suit for setting aside the ex-parte decree. In my view, such a suit is not maintainable as the proper remedy for challenging an ex-parte decree is to make an application under Order 9 Rule 13 of the Code of Civil Procedure or file an appeal against the ex-parte decree. No separate suit is maintainable for challenging the ex-parte decree. In view of this, appellants have not made out a strong prima facie case necessary for grant of relief of injunction. 4 4. In my view, balance of convenience is also against the appellants. They have suffered a decree. The respondents are decree holders and if an injunction or status quo is granted, the respondents would be deprived of the fruits of their decree. In the circumstances, the order of status quo is required to be set aside and vacated. Accordingly, Civil Application no.2095 of 2008 filed by the respondents is allowed. Ex-parte order passed by this court on 24th November 2004 directing the parties to maintain status quo is recalled and set aside. Consequently, Civil Application No.3661 filed by the appellants is dismissed. The respondents are free to execute the decree in accordance with law. (D.G. KARNIK, J)