1 wp7697.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 7697 OF 2011 Janardhan S/o Santram Patil PETITIONER -VERSUS- Babasaheb S/o Hariba Gavde and another RESPONDENTS ...... Shri V.S. Bedre, advocate for the petitioner ...... CORAM : S.V. GANGAPURWALA, J. DATE : 28th November , 2011. PER COURT : 1. The petitioner filed suit for removal of encroachment against present respondents. The said suit was decreed exparte by passing decree of removal of encroachment. The said decree came to be passed on 28.11.2008. The respondents on 14.07.2009 filed an application for setting aside the exparte decree along with application for condonation of delay. The application for condonation of delay was registered as Misc. Application no. 15 of 2009. The said application is allowed. Aggrieved thereby, the present Petition is filed. 2. Shri Bedre, learned counsel for the petitioner vehemently submits 2 wp7697.11 that the defendants were aware about the proceedings in the Court. In spite of the knowledge, they remained absent, therefore, they are not entitled to take benefit of this ground. Even in cross examination, the defendants have admitted about the service of summons. Learned Counsel further contended that the delay will have to be counted from the date of decree and the defendants would be required to explain the delay from the date of passing of decree and so also the reasons for non appearance. The Court below has not considered that there is absolute no sufficient cause. 3. With the assistance of learned counsel, I have gone through the order. The order shows that the defendants had not appeared in the proceedings. The defendants got knowledge of the judgment and decree only after the defendants were served with the notices of the Execution Proceedings on 16.06.2009. After getting knowledge of the decree on 16.06.2009, the present application is filed on 14.07.2009. There is nothing on record to show that the defendants had knowledge of the judgment and decree prior to 16.06.2009. The Court has observed that whether the summons were properly served or not and the reasons for non-appearance will be required to be considered while dealing with the application under Order 9 Rule 13 of the Civil Procedure Code. 4. In view of the above, the discretion exercised by the Court below 3 wp7697.11 is a plausible one and needs no interference under Article 227 of the Constitution of India. In the result, the Writ Petition is dismissed. No costs. [S.V. GANGAPURWALA] JUDGE ga s/wp7697.11