-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3146 OF 2010 Radhakrishna R. Nandrajog since deceased LRs. ..Petitioners. Versus P. S. Sambhamurthy, through his C.As. ..Respondents. Mr. A. S. Desai for the petitioner. Ms. Veena Thadani for respondent no.1. Mr. P. G. Lad for respondent no.4. Mr. J. J. Khemani, AGP for respondent no. 6. Coram : R. V. MORE, J. Date : July 7, 2010. P. C. : 1. Heard learned counsel for the respective parties. 2. By the impugned order, the President, Maharashtra State Appellate Court, Mumbai was pleased to allow the application of respondent no.1 thereby setting aside the ex-parte order dated 9th January 2007 passed in Appeal No.209 of 2003. 3. Mr. Desai, learned counsel for the petitioner submitted that the judgment and award dated 9th January 2007 passed in Appeal 209 of 2003 is not ex-parte, and therefore the application filed by respondent no.1 is not maintainable under Order-IX Rule-13 of the Code of Civil srp -: 2 :- Procedure, 1908. He relied upon the observations made in the impugned order that respondent no.1 was duly served with the notices of appeal. Mr. Lad, learned counsel for respondent no.4 supported the petitioner. He submitted that no finding is recorded by the President of the Appellate Court about the sufficiency of cause to set aside ex-parte decree. Ms. Veena Thadani, learned counsel for respondent no.1, on the contrary, supported the impugned order and relied upon the finding of Ld. President recorded in paragraph no. 7D of the impugned order. 4. Having considered the submissions of learned counsel, I do not find merit in the petition. In order to succeed in an application under Order-IX Rule-13 CPC, the person must satisfy the Court that (i) the summons was not served, or (ii) that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. In the present case, it is true that the finding is recorded by learned President that respondent was duly served by way of substituted service. However, further it is recorded that the wife of respondent was suffering from Cancer and she was required to be taken to Canada for treatment and operation and respondent no.1 at the relevant time was not present in India. In these circumstances, in my opinion, respondent no.1 has shown sufficient cause inasmuch as he has proved that he was prevented from appearing by sufficient cause when the appeal was called on for -: 3 :- hearing. Considering this position, respondent no.1’s application for setting aside ex-parte judgment and decree is maintainable. 5. Regarding the submission of Mr. Lad that learned President has not recorded the finding on sufficiency of cause, I find that there was delay in filing an application for setting aside ex-parte decree, and therefore respondent no.1 filed an application for condonation of delay. The said application was rejected and therefore the matter was carried to the High Court by respondent no.1 and this Court condoned the delay. While condoning the delay, this Court accepted respondent no.1’s absence in India at the relevant time. This order of the High Court has attained finality as the same is not challenged by the petitioner and respondent no.4. In these circumstances, I do not find any merit in the said submission of Mr. Lad. Learned President of the Appellate Tribunal has exercised the discretion. The said discretion is exercised judicially and therefore I am not inclined to exercise my jurisdiction under Article 227 of the Constitution of India. In this view of the matter, writ petition is dismissed. (R.V. MORE, J.)