1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4688 OF 2008 Shri. Manoj Ramakant Adkar. ... Petitioners V/s. Shri. Vishnu Laxman Gole & Ors. ... Respondents .................. Shri. P.S. Dani for Petitioner. Shri. Nitin Mulay for Respondent No. 1. .................. CORAM : S. C. DHARMADHIKARI, J DATE : 16th June, 2009. P.C. 1. Rule. Respondent no. 1 waives service. 2. This a Writ Petition by the Defendant No. 1 (b) is a Special Civil Suit No. 1159 of 1999. The contesting respondent is Respondent No. 1, who is a senior citizen. 3. He instituted this suit for recovery of money from all defendants. This money claim has been decreed and according to the Petitioner, the decree was passed in his absence. The petitioner applied for setting aside this decree, but his application has been rejected by the trial court on the ground that the same was not maintainable. That is why this Writ Petition. 4. Mr. P.S. Dani appearing for the petitioner urged that the trial court was in 2 obvious error in holding that the application is not maintainable. From reading of the judgment of the trial court, according to Shri. P. S. Dani, the decree has been passed invoking Order 17, Rule 2 of the Civil Procedure Code and therefore, it could be styled as an Ex-parte decree. Consequently, an application to set aside this decree under Order 9, Rule 13 of the Civil Procedure Code was maintainable. He submits that looked at from any angle, this is a decree for want of appearance of petitioner. He may have filed his defence but on the date when the suit was placed before trial court, admittedly, he was absent. For all these reasons and in the light of the deposit of a substantial sum in the Executing Court, the exparte decree may be set aside and the suit be restored for trial afresh. 5. Mr. Mulay appearing for first respondent contended that there is a difference between decree passed in absence of a party defendant and a decree which is passed after the written statement has been filed, but defendant does not lead any evidence. Petitioner before failed to lead oral and documentary evidence. The Petitioner’s remedy to challenge such a decree is only by way of an Appeal and any application to set aside the same is not maintainable before the same. In these set of circumstances, there is no error in the view taken by the court below and the petition be dismissed. 6. I have heard both the sides and perused the decree. In paragraph No. 4 of the judgment and decree of the trial court it has been observed that plaintiff entered the witness box and produced documents. Defendant No. 1 ( a ) was present and he cross-examined the plaintiff at length. The petitioner and his counsel were absent on the date of hearing. None of the defendants adduced 3 any oral or documentary evidence. Thus, there was no participation on the relevant date of the Petitioner. 7. He applied to the trial court by filing a Miscellaneous Application and urged that he had shifted his residence and therefore, could not contact the advocate for further instruction including informing him of his changed residential address. The Petitioner pointed out that the suit was decreed on 27 th February, 2006, but he came to know of the same only on 02 nd February, 2008, when the bailiff from the Executing Court attended his residence. In these set of circumstances, the exparte decree be set aside and the delay be condoned. 8. This application was placed before the trial Court and the trial court held that the judgment is passed on merits and therefore, it cannot be said to be an exparte decree. The remedy is filed to an appeal and not the instant application. 9. The learned Judge has not referred to any provision of law nor any decision of this court or the Honourable Supreme Court taking a view that an exparte decree is not a decree on merits nor is there a prohibition in deciding a suit Ex-party on merits. As to how a decree passed in absence of the party on merits, cannot be set aside at the request of the absenting litigant / party, is not clear to me at all. This is the case where the petitioner is absent when the suit was placed before the Court. Time and again it has been pointed out that the court had granted time and adjourned the hearing of the suit. When the suit is adjourned for further hearing, the court had passed a decree in terms of Order 17, Rule 1 Sub-Rule 2 ( e ) of Civil Procedure Code. The further procedure is also provided and the party, if failed to appear on any date to which the suit has 4 adjourned, the court can dispose of one of the suits by one of the modes under Order 9 or make such other order as it deems fit. Ultimately, the provision under Order 17 dealing with adjournment gives a discretion to the court to proceed even in the absence of the party by dealing with the case on merits. Order 9, Rule 13 is a provision enabling the defendant to apply for setting aside exparte decree. The decree is passed in his absence and the defendant can apply to set aside the same. Now the decree can be set aside not only on the ground that the summons was not served but also that a party defendant was prevented by sufficient cause from appearing when the suit was called out for hearing. It is not disputed before me that the court proceeded in the absence of the defendant and granted the decree in favour of the original Plaintiff. This is a decree which is passed by invoking Order 17 of the Civil Procedure Code and in terms of the said provision an application could have been filed to set aside the same. Any larger controversy need not be decided when the petitioner has deposited a substantial sum in the Executing Court and if the first respondent so desires he can apply for withdrawal of the same. The Executing Court to permit him to withdraw the same on furnishing security to its satisfaction. 10. Considering the fact of the application, the same showed sufficient cause for absence of petitioner on the relevant date so also the conduct of the petitioner being of such a nature, which cannot be termed as lacking in bonafide or can be said to be totally negligent. The application to set aside the decree could have been allowed by putting the applicant to certain terms. 5 Accordingly, the following order : a. The order under challenge is set aside. b. Rule is made absolute in terms of prayer clauses ( a ) and ( b ) subject to the petitioner paying costs quantified at Rs. 5000/- to the first respondent within a period of 4 weeks from the date of receipt of a copy of the order. c. The suit shall stand restored to file of the trial court on the compliance of the above for being proceeded with afresh on merits and in accordance with law. The trial court to give the suit priority and dispose it of within the period of 4 months from its restoration and on this occasion no request for unnecessary adjournment should be entertained. All parties to cooperate in the early disposal of the suit. d. Civil Application does not survive in the light of the order of this Court. S. C. DHARMADHIKARI. ndm/wp4688.08