1 wp8746.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 8746 OF 2010 Sow. Ushadevi W/o Rajendra Anand ..PETITIONER -VERSUS- Sayyed Ismail S/o Sayyed Kasim and others. ..RESPONDENTS ..... Mr. A.S. Bajaj, Advocate for petitioner. Mr. V.R. Naik, Advocate for respondent nos. 1 to 7. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 2nd May, 2011. PER COURT : 1. Heard Advocates Mr. Bajaj for petitioner and Mr. Naik for respondent nos. 1 to 7. 2. The judgment dated 30th March, 2009 delivered by the District Judge-2 at Jalna in Misc. Civil Appeal no. 36 of 2007 and the order of the trial Court dated 27.04.2007 in Misc. Appeal no. 119 of 2005, are questioned in the present matter. 3. Advocate Mr. Bajaj contends that the petitioner is purchaser during pendency of the suit and his vendor Sayyad Lal died in the meanwhile. Hence, in view of his death, the petitioner has got every right to move application under Order 9 Rule 13 of the Civil 2 wp8746.10 Procedure Code for setting aside the exparte decree. The order of the Joint Civil Judge, Junior Division, Jalna dated 27.04.2007 and the judgment in appeal holding that he has no such status are misconceived. Reliance is being placed upon the judgment of the Hon'ble Apex Court reported at " 2004 SAR (Civil) 181 Supreme Court"- Raj Kumar V/s Sardari Lal and others. Learned counsel further states that though this contention was specifically raised, the Courts have not looked into it and only by upholding preliminary objection, application has been rejected. 4. Advocate Mr. Naik has at the outset contended that appellate judgment can be questioned by filing appeal against order and therefore, Writ Petition is not maintainable. In the alternative and without prejudice, it is argued that petitioner being the purchaser during pendency of suit, he can not make any grievance and for the said purpose support is being taken from the judgment of the Hon'ble Apex Court reported at "2008 SAR (Civil) 448 Supreme Court"- Usha Sinha V/s Dina Ram and others. Lastly, it is contended that perusal of the judgment dated 28.08.1998 reveals that it was not exparte judgment and hence application under Order 9 Rule 13 of Civil Procedure Code as filed itself is misconceived. Learned Counsel contends that suit as filed is of the year 1973 and the respondents are still awaiting fruits of 3 wp8746.10 that decree, therefore, this Court in writ jurisdiction can examine the grievance about maintainability of the application under Order 9 Rule 13 of the Civil Procedure Code. 5. In so far as the last argument of the learned Counsel for the respondents is concerned, Regular Civil Suit no. 111 of 1973 appears to have been filed on 11.06.1973 and that suit has been decreed on 28.08.1998. Copy of the judgment as placed on record shows that suit was proceeded exparte against some of the defendants or their legal heirs. This contention that the said judgment is not exparte was not raised before the trial Court or the appellate Court. In view of the material available on record, I am not inclined to look into it for the first time. Same can be raised by the petitioner as preliminary objection before the trial Court again. 6. Civil Procedure Code permits filing of appeal against order vide its Order XLIII. As per Order XLIII Rule 1(d) , the appeal against order passed on application under Order 9 Rule 13 is maintainable. That appeal was accordingly filed by the present petitioner vide Misc. Civil Appeal no. 36 of 2007 and it has been rejected on 30th March, 2009. Order XLIII does not prescribe any appeal against appellate judgment. It is therefore obvious that present Petition is maintainable. 4 wp8746.10 7. Reliance upon the judgment reported at " 2008 SAR (Civil) 448 Supreme Court"- Usha Sinha V/s Dina Ram and others (Supra) to contend that petitioner lacks locus is misconceived. There, the status of transferee pendente lite in execution proceedings has been looked into in the background of provisions of Order XXI Rule 102 of the Civil Procedure Code with Bombay Amendment thereto. Here, the petitioner contends that initially after receipt of the notice of execution proceedings, an objection under Order 21 Rule 97 was filed as third party but after realizing the position, recourse was taken to Order 9 Rule 13 of the Civil Procedure Code. 8. The Judgment of the Hon'ble Apex Court reported at " 2004 SAR (Civil) 181 Supreme Court"- Raj Kumar V/s Sardari Lal and others (Supra) clearly shows that when the decree is exparte, the purchaser from defendants therein can move application under Order 9 Rule 13 of the Civil Procedure Code. In this view of this clear verdict, application moved by the respondents for setting aside the order passed by the trial Court and the appellate Court is sustainable. Grievance made by the petitioner needed to be looked into on merits. 5 wp8746.10 9. Writ Petition no. 8746 of 2010 is accordingly allowed. Orders dated 27.04.2007 in Misc. Application no. 119 of 2005 and appellate judgment dated 30.03.2009 impugned therein are quashed and set aside. Proceedings in Misc. Application no. 119 of 2005 are restored back to the file of Joint Civil Judge, Junior Division, Jalna for taking fresh decision in accordance with law. 10. Parties are directed to appear before that Court on 8th June, 2011. Trial Court shall look into the objections being raised by the present respondents in accordance with law and thereafter shall consider the grievance of present petitioner and attempt to decide the controversy as early as possible and in any case by 31st October, 2011. 11. Rule made absolute accordingly. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp8746.10