:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5298 OF 2007 M/s.Shrinathji Yarn (Pros.) Pvt. Ltd. & Ors. .. Petitioners. Vs. The South Indian Co-operative Bank Ltd. & Ors. .. Respondents. Mr.Ketan A.Chothani for the petitioners. Mr.N.N.Bhadrashete for respondent no.1. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. DATED : 20TH FEBRUARY, 2008. DATED : 20TH FEBRUARY, 2008. DATED : 20TH FEBRUARY, 2008. P.C.: P.C.: P.C.: . Heard learned counsel for the parties. 2. The petitioners have taken exception to the judgment and order dated 26th March, 2007 passed by the Maharashtra State Co-operative Appellate Court, Mumbai by which it has disposed of two Appeals from Order bearing Nos.25 and 26 of 2007. The operative portion of the judgment reads thus: "1. Appeal is partially allowed. 2. Exparte decree is set aside on following conditions: (a) Respondents shall deposit with bank Rs.30 lacs within two months from the date of this order. (b) If the aforesaid amount is not deposited within that period the original decree shall stand and their application for setting aside shall stand dismissed with costs. (c) In case the amount is deposited :2: :2: :2: within aforesaid period the matter shall be remanded back to the trial Court with a direction to dispose off the dispute within a period of six months thereafter. 5. The said deposit shall be without prejudice to the rights and contentions of any of the parties on merits. 6. Oral prayer for stay of this order is rejected. 7. Appeals are disposed off accordingly." 3. There is no dispute that an application for setting aside exparte decree was not before the court when the application for condonation of delay was heard and decided by the Co-operative Court. In other words, the Co-operative Court was dealing only with two applications, one filed by the petitioner-company and other by one of the guarantors, for condonation of delay in filing the applications for setting aside exparte decree. The court had decided the applications for condonation of delay, keeping the applications for setting aside the exparte decree pending. In view thereof the appellate court was wrong in setting aside the exparte decree passed by the co-operative court while dealing with the appeals when admittedly the issue of setting aside the ex-parte decree was not the subject matter of the appeals. The appellate court was concerned only with the order passed by the Co-operative Court on the application for condonation of delay. In the circumstances both the learned :3: :3: :3: counsel for the parties have fairly stated that I need not record reasons for disposing of this writ petition and they agreed for the following order: (a) The petitioners shall deposit Rs.5,00,000/- with the respondent-company within six weeks from today failing which their applications for setting aside exparte decree shall stand rejected. (b) The petitioners shall also take steps to sale gala situated at Khopar Khairne, Thane-Bhiwandi Road, which is a mortgaged security, within six weeks from today and shall deposit sale proceeds with the bank. It appears that the Bank has already issued NOC for the sale of the Gala. On the petitioners depositing Rs.5,00,000/- and the sale proceeds of the Gala, as aforementioned, the Co-operative Court shall proceed to decide the application for setting aside exparte decree on merits in accordance with law as expeditiously as possible and preferrably within six weeks therefrom. The operative portion of the impugned order is modified in aforementioned terms. All contentions of the parties are kept open. With these observations the writ petition is disposed of. (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.)