/ 1/ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8377 OF 2007 Dattatraya Suryappa Dhangar @ Deshinge & Anr. ...Petitioners V/s. Ramesh Baburao Swami ...Respondent Shri.Surel S. Shah for Petitioners. Shri.P.D. Dalvi for Respondent CORAM : V.M. KANADE, J. DATED : 17th APRIL, 2008. P.C.:- 1. Heard learned counsel for the Petitioners and learned counsel for the Respondents. 2. Petitioners are challenging the order passed by the Joint Civil Judge, Junior Division, Jaysingpur, who by his order dated 07/08/2007 rejected the application filed by the Petitioners herein for condonation of delay for filing an application for setting aside the ex-parte decree which was passed against them. 3. Brief facts, in a nutshell, are that the Respondent filed a suit against / 2/ the present Petitioners. It is case of the Petitioners that summons of the said suit was served on 3rd party by the Bailiff and this was done in collusion with the Plaintiffs. It is case of the Petitioners, therefore, that summons was not served and therefore, the Petitioners were not aware that the said suit has been filed against them. As such, they did not know the date on which ex- parte decree was passed against them. It is case of the Petitioners that they filed an application for certified copy of the ex-parte decree on 13/11/2003 and received copy of the same on 20/11/2003 and thereafter, an application was filed for setting aside the ex-parte decree and alongwith the said application, an application for condonation of delay was filed. 4. Learned counsel for the Petitioners submitted that the Trial Court has in its order observed that there is some dispute in respect of the fact of service of suit summons on the Petitioners herein. He submitted that after having recorded said finding, the Trial Court has observed that the Petitioners not having pleaded specific date on which they became aware of the ex-parte decree, avertments in the application were vague and therefore, dismissed their application for condonation of delay. He submitted that delay which was caused, according to the Petitioners, was of 30 days though the Trial Court / 3/ has observed that the delay was of 43 days for filing the application. He submitted that therefore, impugned order is liable to set aside. 5. Learned counsel for the Respondent, on the other hand, submitted that the Petitioners had not specifically stated the date on which they became aware of the ex-parte decree and therefore, this Court should not interfere with the order passed by the Trial Court. He submitted that in the absence of any statement to that effect in the application, it was not open for the High Court to condone the delay which was caused in filing the application. In support of said submission, he relied on the judgment of the Apex Court in the case of Mahabir Singh V/s. Subhsh and Ors. reported in (2008)1 SCC 358. 6. It is not possible to accept the submissions made by the learned counsel for the Respondents. In my view, after having held that the summons was not properly served, it was not open for the Trial Court to have held that for the lack of proper averments regarding knowledge of date, application is liable to be dismissed. Delay in any case was of 43 days in filing the application. The Trial Court after having observed that summons was not properly served, ought to have considered the application for condonation of delay favorably so that matter could be heard on merits. / 4/ 7. In my view, ratio of the judgment on which reliance is placed by the learned counsel for the Respondent in the case of Mahabir Singh(supra) will not apply to the facts of the present case. In the said case, ex-parte decree was passed on 19/02/1986 and an application was filed on 06/02/97 and in the application, it was admitted by the Defendant that he had knowledge about the ex-parte decree one and half a years before the application was filed. In view of clear admission which was given by the defendant, the Apex Court observed that it was not open for the High Court to have condoned the delay in view of bar U/s.3 of Limitation Act, since no sufficient cause was shown for the delay. On the contrary, it is clearly admitted by the Defendant about the knowledge of the ex-parte decree being passed one and a half years before the application was filed after lapse of 11 years. Observation made by the Apex Court, therefore, were made in the facts and circumstances of the said case. Therefore, ratio of the said judgment will not apply to the facts of the present case. Impugned order is, therefore, set aside. Petition is allowed. Delay caused in filing the application for setting aside the ex-parte decree is condoned. Trial Court shall decide the application for setting aside the ex-parte decree on merits and in accordance / 5/ with law. . Writ Petition is disposed of accordingly. ( V.M. KANADE, J.)