jpc wp8953-06.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WIRT PETITION NO. 8953 OF 2011 Mrs. Yashoda Anand Shetty ... Petitioner Versus Mrs. Sundrabai Khandu Pawar and others ... Respondents Mrs. Priti Shah for the petitioner Mr. S. M. Gorwadkar for the respondents. CORAM: R. M. SAVANT, J. DATED : 21st November, 2011 P.C. : 1. Rule, made returnable forthwith. By consent of the parties, the petition is taken up for hearing. 2. The above petition takes exception to the order dated 26th September, 2011 by which order, the further proceedings in Execution Petition No. 7 of 2007 arising out of Civil Suit No. 179 of 2005 came to be stayed for a period of four weeks. 3. The petitioner is faced with a decree passed in Regular Civil Suit No 179 of 2005 dated 28th of November, 2006. The said decree was ex-parte as the petitioner did not participate in the said proceedings. The petitioner, therefore, filed an application under Order jpc wp8953-06.sxw 2 9 Rule 13 of the Code of Civil Procedure along with application for condonation of delay bearing No. 14 of 2009. The said application was rejected by the trial Court by the order dated 13th January, 2010. Being aggrieved by the said order, the petitioner filed Misc. Civil Appeal No. 352 of 2010. In the said appeal initially, the stay was granted to the execution of decree. However, the said appeal ultimately came to be rejected by the impugned order. On an application filed by the petitioner the stay was extended as stated above. 4. Even though, the trial Court as well as First Appellate Court did not deem it fit to accept the reasons mentioned by the petitioner in support of her case for condonation of delay, in my view, the petitioner ought to be given one last indulgence to prosecute her application under Order 9 Rule 13 of the Code on merits. It is trite that a party should be given an opportunity to prosecute the proceedings on merits rather than being thrown out on technicalities. May be there is a delay on the part of the petitioner in filing the application under Order 9 Rule 13 of the Code, however, the same can be offset by the respondent being paid costs. In that view of the matter, order dated 26th September, 2011 passed in Misc. Civil Appeal No. 352 of 2010 and Exh. 46 filed therein is quashed and set aside and resultantly the delay in jpc wp8953-06.sxw 3 filing of the application under order 9 Rule 13 stands condoned. The trial Court before whom the said application is pending shall decide the said application within a period of two months from the first appearance of the parties. The parties to appear before the Trial Court on 7th December, 2011. The trial Court thereafter to fix a schedule as per its convenience. In the meantime, the parties are directed to maintain status quo as on date, till the decision on the said application. 5. In my view, interest of justice would also be served, if the petitioner is directed to pay costs of Rs.3000/- to the respondents to be paid within four weeks from date. Rule is accordingly made absolute in in the aforesaid terms, with the parties to bear their respective costs. (R. M. SAVANT, J.)