1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6023 OF 1998 Smt.Champabai Ambadas Narute Petitioner versus Apparao Laxman Regude Respondent Mr.Vijay Killedar i/by Nitin Jamdar for petitioner. Mr.Dilip Bodake for respondent. CORAM : A.S.OKA, J. DATE : 27th January 2010 JUDGMENT :- 1. Heard learned counsel for the petitioner and learned counsel for the respondent. The petitioner is the defendant and the respondent is the plaintiff. A decree for specific performance has been passed in favour of the respondent. Civil Miscellaneous Application No.18 of 1996 was made by the petitioner for setting aside the said decree on the ground that the same was an ex-parte decree. The petitioner invoked Rule 13 of Order IX of Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"). In the said miscellaneous application for setting aside the ex-parte decree, an application was made at Exhibit-8 for condonation of delay. By the judgement and order dated 10th November 1997 both the 2 applications for setting aside the ex-parte decree as well as condonation of delay have been rejected. An appeal was preferred by the petitioner before the District Court. By the impugned order the appeal has been dismissed on the ground that by the order passed by the Trial Court the application for condonation of delay has been dismissed and, therefore, remedy of the petitioner was to file a revision application before this Court. 2. Learned counsel appearing for the petitioner submitted that what was dismissed by the Trial Court was the main application under Rule 13 of Order IX of the said Code as well as an application for condonation of delay filed therein. He submitted that therefore the remedy under clause (d) of Rule 1 of Order XLIII of the said Code was available. The learned counsel for the appellant supported the impugned judgement and submitted that no interference is called for. 3. I have given careful consideration to the submissions. Learned counsel for the petitioner has tendered on record the certified copies of the Civil Miscellaneous Application No.18 of 1996 as well as application for condonation of delay. From the certified copies it appears that the application for setting aside the alleged ex-parte decree was itself numbered as Miscellaneous Application No.17 of 1986 and application for condonation of delay was shown to have 3 been filed in the said application and the same was marked as Exhibit-8. On both the applications, the learned Trial Judge issued notice on 31st August 1996. 4. A perusal of the judgement nand order of the Trial Court shows that a specific point was framed as to whether the petitioner is entitled for setting aside the ex-parte decree. A perusal of the order of the Trial Court shows that the merits of the application for setting aside the ex-parte decree were considered and in fact the Court came to the conclusion that the decree was not one under rule 6 of Order IX of the said Code and, therefore, the application under Rule 13 of Order IX of the said Code was not maintainable. Thus, the effect of the order of the Trial Court is that the application made by the petitioner for setting aside the ex-parte decree has been dismissed on merits by holding that the same was not maintainable. In substance, the effect of the order of the Trial Court is that the application for setting aside the ex-parte decree has been dismissed. All this happened because of the erroneous procedure was adopted by the Trial Court. In fact, the application for setting aside the ex-parte decree could not have been registered and numbered unless the delay was condoned. However, the Trial Court treated the application for condonation of delay as an application filed in the application for setting aside the ex- parte decree and issued notice of both the applications to the 4 respondents. 5. Therefore, the said order is appellable under clause (d) of Rule 1 of Order XLIII of the said Code. The learned Additional District Judge committed an error by completely ignoring the fact that even the application for setting aside the ex-parte decree was dismissed on the ground that the same was not maintainable. 6. Hence, only course open for this Court is to set aside the impugned order and to direct the Appellate Court to hear and decide the appeal on merits. The question regarding nature of the decree as well as question regarding maintainability of the application under Rule 13 of Order IX of said Code will have to be kept open to be decided in appeal. 7. Hence, I pass following order :- (A) The impugned order dated 18th December 1997 is quashed and set aside; (B) Civil Miscellaneous Appeal No.179 of 1997 is restored to the file of the District Court; 5 (C) All contentions of the parties including the contentions as regards nature of the decree and maintainability of the application under Rule 13 of Order IX of the said Code are expressly kept open; (D) The parties are directed to appear before the learned Principal District Judge, Solapur on 22nd February 2010 at 11.00 a.m. The learned Principal District Judge may himself take up the appeal for hearing or may assign it to any other Judge as per his administrative convenience; (E) The appeal shall be decided as expeditiously as possible and preferably before end of April 2010; (F) Rule is partly made absolute in the above terms with no order as to costs. (A.S.OKA, J.)