IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO.112 OF 2008 IN TESTAMENTARY SUIT NO.53 OF 2008 IN TESTAMENTARY PETITION NO.886 OF 2007 Malavika @ Anuradha Pradeep Nadkarni .. Plaintiff Vs. Datta @ Dattaprasanna G. Nadkarni .. Defendant Mr.N.V.Moye for the plaintiff. Mr.S.D.Mulye for the defendant. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 03rd October 2008. : 03rd October 2008. : 03rd October 2008. P.C.: . Heard learned counsel appearing for the plaintiff in support of notice of motion. The prayer in this notice of motion is for dismissal of the caveat filed by the defendant/caveator. 2. The learned counsel appearing for the plaintiff invited my attention to the affidavit dated 11th April 2008 filed by one Surendra Balaram Jaigadkar, Special Bailiff in which it is stated that a citation has been published in a local newspaper in United States of 2 America on 12th March 2008. He has placed reliance on a copy of the citation published on 12th August 2008 in newspaper by the name "Argus". He submitted that the citation was published in the said newspaper having adequate circulation in the area in which defendant/caveator is residing in United States. He submitted that the caveat was not filed by the defendant within the period provided under Rule 401 of the Bombay High Court Original Side Rules and in fact there is delay of 22 days in filing caveat. He submitted that no proceeding is taken out by the defendant for condonation of delay. He, therefore, submitted that the caveat be dismissed. The learned counsel appearing for the defendant/caveator opposed the notice of motion. 3. I have considered the submissions. In the caveat published in newspaper in United States on 12th March 2008, the residential address of the defendant/caveator has been set out. Rule 399 of the Rules provides that citation shall be served personally when possible and personal service shall be effected by giving a true copy of the citation to the party and taking acknowledgment on the original. The learned counsel appearing for the plaintiff relied upon Rule 400 which provides that when citation cannot be served 3 personally as required by Rule 399, the same shall be served by publishing the same in such local newspaper as the Prothonotary and Senior Master may direct. 4. In my view, in this case it cannot be said that citation could not have been personally served to the defendant/caveator as the address of the defendant/caveator was very much available. Therefore, there is no proper service of citation to the defendant/caveator. Hence, the limitation provided in Rule 401 will not start running from 12th March 2007. Therefore, there is no delay in lodging the caveat. Hence, there is no merit in the notice of motion and the same is accordingly dismissed. (A.S.Oka,J)