1 W.P.No.4919/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4919 OF 2011. Bhikan Sandu Tadvi, Deceased through his L.Rs. 1. Husain S/o Bhikan Tadvi, Age 45 years,Occ.Agri., 2. Ughadu Bhikan Tadvi, Age 35 years, Occ.Agri., 3. Supdu Bhikan Tadvi, Age 30 years, Occ.Agri., 4. Jasubai d/o Bhikan Tadvi, Age 32 years, Occ.Agri., 5. Munnabai d/o Bhikan Tadvi, Age 28 years,Occ.Agri. All R/o Bhokari, Tq. Raver, Dist.Jalgaon. ... Petitioners. Versus 1. Smt.Malhanbai Roshan Tadvi, Age 60 years, Occ.Household, 2. Salima d/o Roshan Tadvi, Since deceased through L.Rs. 2.1. Gulsher Abbas Tadvi, Age 42 years,Occ.Agri., 2.2. Samsher Gulsher Tadvi, 2 W.P.No.4919/11 Age 22 years, Occ.Agri., 2.3. Salim Gulsher Tadvi, Age 19 years, Occ.Agri., 2.4 Ramjan Gulsher Tadvi, Age 26 years, Occ.Agri., 2.5. Hasnoor Gulsher Tadvi, Age 24 years, Occ.Agri., No.2.1 to 2.5 All R/o Bhokari, Tq. Raver, Dist. Jalgaon. 3. Kalima Roshan Tadvi, Age 22 years, Occ.Labour. 4. Nurabai Roshan Tadvi, Age 29 years, Occ.Labour. All R/o Bhokari, Tq. Raver, Dist.Jalgaon. ... Respondents. ... Mr.A.G.Talhar, advocate for the petitioners. Mr.P.N.Kutti, advocate for Respondent Nos.2, 2.1 to 2.4. ... CORAM : S.V.GANGAPURWALA,J. Date : 07.09.2011. ORAL JUDGMENT : 1. Heard. 3 W.P.No.4919/11 2. Rule. Rule returnable forthwith. With the consent of the parties, the petition is taken up for final hearing. 3. The present Respondents had filed RCS No.98/1991 against the present petitioners for possession. The said suit came to be decreed by judgment and decree dated 7.10.1997. The petitioner filed application for setting aside exparte decree on or about 9.7.1999. The petitioners also moved an application for condonation of delay U/s 5 of the Limitation Act, bearing Misc. Application No.9/1999. The trial Court vide its order dated 6.5.2011, rejected the said application. Aggrieved thereby, the present petition is filed. 4. Mr.Talhar, learned counsel for the petitioner submits that the Court has taken a very technical approach while rejecting the said application. The suit proceeded exparte though the petitioners had appeared in the suit. Thereafter, they did not contest the suit as there was oral compromise between the parties. 4 W.P.No.4919/11 The petitioners did not appear but still the plaintiff surreptitiously continued the suit and obtained the exparte decree. The petitioners got the knowledge of the said exparte decree only on 25.6.1999 when they were served with the notice of execution and on 9.7.1999, the application was filed for setting aside the exparte decree. From the date of knowledge of the exparte decree, the application for condonation of delay was within limitation. The learned counsel relies on the judgment of the Apex Court in a case of "Bhagmal and others Vs. Kunwar Lal and others" reported 2010 (7) JT 597. The judgment of the learned Single Judge in a case of "Dilip B. Joshi. Vs. Vidya Sahakari Bank Ltd." reported in 2004 (5) Bom.C.R. 43. So also the judgment of the learned Single Judge of this Court in a case of "Sonerao Sadashivrao Patil and another Vs. Godawaribai W/o Laxmansingh Gahirewar and others" reported in 1999 (2) Mh.L.J. 272. 5. Mr.Kutti, learned counsel for the Respondents submits that the petitioners are guilty of suppression of facts so also submitting 5 W.P.No.4919/11 incorrect and false facts. No such compromise at any time was arrived at between the parties. The witnesses were examined. The witnesses who are examined also did not support the case of the petitioners. The petitioner did not examine the alleged persons named in the application who according to the petitioners were present at the time of the alleged compromise. Some other persons were examined who also negatived the case of the petitioners. In such circumstances, no discretion can be exercised in favour of the petitioners. The trial Court has considered the total evidence on record and has rightly rejected the application. According to the learned counsel as the petitioners came in possession of the property, the petitioners have intentionally prolonged the matter. The petitioners can not take advantage of their own wrong. The summons were duly served. As such in view of Article 123 of the Limitation Act, the application for setting aside exparte decree has to be filed within 30 days from the date of the judgment. According to the learned counsel, the facts and circumstances do not necessitate interference of 6 W.P.No.4919/11 this Court. The view taken by the Court is proper. The learned counsel relies on the following judgments : (i) "Mahabir Singh Vs. Subhash and others" reported in 2007 STPL (LE) 39233 SC; (ii) "Bhalchandra Ganesh Naik and another Vs. Sona Hotel and others" reported 2009 (4) ALL MR 349; (iii) "M/s Dukle Constructions and others Vs. Mr.Domingos Antonio Monteiro and others" reported in 2009 (4) ALL MR 352; (iv) "Bhanu Kumar Jain Vs. Archana Kumar and another" reported in 2005 (2) Mh.L.J.839; (v) "Kamalbai W/o Narasaiyya Shrimal and another Vs. Ganpat S/o Vithalrao Gavare" reported in 2007 (1) Mh.L.J. 807; (vi) "Tahira Industr5ies (India) Pvt.Ltd. Vs. Jagannath Ramdayal Yadav and others" reported in 2007 (2) Mh.L.J. 366; (vii) "Ramchandra Ramgopal (M/s) through 7 W.P.No.4919/11 Jugalkishore S/o Navalkishore Kothari Vs. Kamalkishore S/o Onkarmal Rungta and others" reported in 2005 (2) Mh.L.J.623; (viii) "Ramesh S/o Rasiklal Suchak since deceased by his L.Rs. Pushpa Ben wd/o Rameshchandra Suchak and others" Vs. Shyamsunder S/o Rajelal Suroshiya since deceased by his L.Rs. Ramkumari wd/o Shyamsunder Suroshiya and others" reported in 2005 (2) Mh.L.J. 629; (ix) "Shyam Sunder Sarma Vs. Pannalal Jaiswal and others" reported in 2004 AIR SCW 6513; (x) "Commissioner of Central Excise, Pune Vs. M/s Kripa Chemicals Pvt.Ltd." reported in 2004 AIR SCW 6522; (xi) "Sunil Poddar and others Vs. Union Bank of India" reported in 2008 AIR SCW 556" 6. In the present matter, I am only concerned with the adjudication of an application for condonation of delay filed U/s 5 of the 8 W.P.No.4919/11 Limitation Act for filing an application for setting aside exparte decree. In the present matter, I need not dilate on the merits of the application for setting aside exparte decree. The same would be required to be considered by the Court dealing with the said application, in case the delay is condoned. 7. In the present case, the suit was decreed on 7.10.1997. The notice of execution was served on the petitioners on 25.6.1999 and the petitioners filed application for setting aside exparte decree with the application for condonation of delay on 9.7.1999. The question would be about the period from date of decree i.e. 7.10.1997 till 9.7.1999 i.e. filing of the application for setting aside exparte decree. After the petitioners were served with the summons and had appeared in the matter by engaging the advocate, there is nothing on record to substantiate that the petitioners had prosecuted the matter further. The decree passed is an exparte decree. There is no evidence on record to establish that the petitioners had the 9 W.P.No.4919/11 knowledge of the decree being passed till the service of notice of execution on 25.6.1999. Admittedly, the petitioners remained absent throughout though they had engaged the lawyer who had appeared in the proceedings. Just because they had engaged the lawyer, that would not ipso-facto amount to a proof of knowledge of the judgment and decree being passed. The arguments of the learned counsel for the Respondents about the falsity of the theory of compromise can be considered while considering the application for setting aside exparte decree, and not, at the stage while considering appliction for condonation of delay in filing application for setting aside exparte decree. 7. In a case of "Mahabir Singh Vs. Subhash and others" referred supra, the Apex Court was considering the case where the party who had filed an application for setting aside exparte decree had the knowledge of the exparte decree one and half years prior to filing of the application. In a case of "Bhalchandra Ganesh Naik and another Vs. Sona Hotel and others" 10 W.P.No.4919/11 referred supra relied by the learned counsel for the Respondents on the ground that it is the duty of the party to check with the counsel as to what had happened to the proceedings. The same was with reference to an application U/o 9 Rule 2 of the C.P.C. No doubt, in a case of " Kamalbai W/o Narasaiyya Shrimal and another Vs. Ganpat S/o Vithalrao Gavare" referred supra, it is observed by the learned Single Judge of this Court that ground for condonation of delay must be spelt out clearly and distinctly in the application and the said cause must be a sufficient one and the limitation can not be extended on equitable grounds. In the present case, the date of the knowledge of the exparte decree and judgment to the petitioner can be attributed to be on 25.6.1999 i.e. the date when the notice of execution was served. In such circumstances, the said judgments referred supra are not of assistance to the Respondents. 8. The learned Single Judge of this Court in a case of "Dilip B.Joshi Vs. Vidya Sahakari Bank Ltd." referred supra has held that the 11 W.P.No.4919/11 defendant can avail benefit of Section 5 of the Limitation Act and seek its condonation by satisfying the Court regarding existence of circumstances which prevented him from filing an application U/o 9 Rule 13 of the C.P.C. 9. In the present matter, as there is no circumstance on record to show that after the exparte judgment and decree was passed on 7.10.1997, the petitioners had knowledge of the said judgment and decree till the service of notice of execution on 25.6.1999 and from the said date of knowledge the application for setting aside exparte decree was filed within a period of 30 days. 10. In view of the above conspectus of the matter, I hereby quash and set aside the impugned order and allow the application i.e. Misc.Application No.9/1999 on condition that the petitioners pay total cost of Rs.10,000/- (Rupees ten thousand) to the Respondents within a period of three (3) weeks from today. The said cost shall be deposited in the trial Court. In case 12 W.P.No.4919/11 the cost is deposited, then the application made by the petitioners for setting aside exparte decree shall be registered and decided on its own merits. It is made clear that I have not dilated anything about the reason of absence of the petitioners in the suit till the judgment and decree. 11. Rule made absolute in above terms. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/wp491911