1 wp 7416.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7416 OF 2011 F. M. C. (India) Jalna Through Partner .. Petitioner Versus Vyankatesh Seeds and Fertilizers Mantha Jalna and another .. Respondents Shri D. S. Manorkar, Advocate for the Petitioner. CORAM : S. V. GANGAPURWALA, J. DATE : 26TH SEPTEMBER, 2011. PER COURT : . The petitioner is original plaintiff who had filed suit for recovery. The same was decreed ex-parte. It is submitted that the summons of the said suit were served upon the defendants/respondents. 2. The petitioner filed an execution petition pursuant to the said decree. After service of notice of execution, the respondents filed an application for setting aside ex-parte decree along with 2 wp 7416.11 an application for condonation of delay. The Trial Court has allowed the application of the respondents for condonation of delay. Aggrieved thereby the original plaintiff has filed the present petition. 3. Shri Manorkar, the learned counsel for the petitioner vehemently contends that the application and the evidence mention two separate and distinct grounds. In the application the present respondent No. 2 had stated that he was suffering from forgetfulness and as such could not instruct his lawyer to appear. Whereas the medical certificate that too undated produced before the Court is in respect of typhoid and jaundice. Examination in chief also does not refer to the disease as claimed by the defendant No. 2 in his application. The learned counsel contends that the delay could not have been condoned in such circumstances. By decree been passed the petitioner has accrued right and the delay could not have been condoned in such a casual manner. 4. The Court was considering an application for condonation of delay. Present respondents were served with notice of execution proceedings probably on 11 th December, 2009 and 3 wp 7416.11 thereafter, after obtaining the copies had filed the application for setting aside ex-parte decree along with an application for condonation of delay on 29 th January, 2010. As such, it would be seen that there was not much delay from the receipt of the notice of execution in filing the application for setting aside ex-parte decree and condonation of delay. 5. While condoning the delay, the Court was required to consider the time from the date of knowledge of the said decree. From the date of receipt of notice of execution, the proceedings under Order IX Rule 13 of the Code of Civil Procedure were immediately taken up without much delay. No doubt, the Trial Court has discussed about the grounds agitated in the application and examination in chief. The anomalies in the grounds raised will be required to be considered by the Trial Court while considering the application for setting aside ex-parte decree on its own merits. The genuineness of the grounds raised by the respondents in the application and the evidence will have to be considered by the trial Court while considering application for setting aside ex-parte decree. At this stage of considering an application for condonation of delay, the said grounds would not be germen as from the date of knowledge of the decree, the 4 wp 7416.11 petition for setting aside ex-parte decree was immediately filed. 6. In view of that the writ petition is dismissed with aforesaid observations. No costs. [ S. V. GANGAPURWALA, J. ] bsb/Sept. 11