1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1131 OF 2010 (Surendra Mahadevrao Warwatkar vs. Laxma Mahadevrao Warwatkar & Anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. MARCH 17, 2010. Heard finally Shri Dani, learned counsel for the petitioner and Shri Samarth, learned counsel for respondent No.1. Shri Dani, learned counsel has relied upon the judgment of the Hon’ble Apex Court in the case of Prakash Chander Manchanda & Anr. vs. Smt. Janki Manchanda, reported at AIR 1987 SC 42, to urge that as in present matter recourse to provisions of Order 17, Rule 3 of Civil Procedure Code, was not permissible, the judgment and decree delivered in present matter is under Order 17, Rule 2 of CPC, therefore, the proceedings under Order 9, Rule 13 were maintainable. Shri Samarth, learned counsel has relied upon the judgment of this Court in the case of H.P. Coop. Ltd. vs. M/s. Mafco Ltd., reported at 2000 (2) Mh. L.J. 317, wherein this Court has held that after filing of written statement, if judgment and decree is passed after considering same evidence of plaintiff, it is not an ex parte judgment and decree. 2 I had an occasion to consider this judgment in the case of Ramchandra vs. Kamalkishore, reported at 2005 (2) Mh. L.J. 623. However, it is to be noted that in that matter the trial Court itself had recorded specifically that the Court was proceeding further under provisions of Order 17, Rule 3(a) of C.P.C. After considering the case law, this Court has found that because of that observation of trial Court, it was not permissible for any court to treat the judgment and decree as one amenable to Order 9, Rule 13. In any case, the judgment of the Hon’ble Court in the case of Prakash Chander Manchanda & Anr. vs. Smt. Janki Manchanda, (supra) was not required to be considered in that matter. During hearing, it has been pointed out to this Court by Shri Samarth, learned counsel that subsequent to impugned judgment and decree, there was settlement between the parties and the petitioner defendant had agreed to vacate. However, thereafter he has gone back on it. Shri Dani, learned counsel has pointed out that the alleged settlement is not considered by the Courts below. In this situation, I find it proper to direct 4th Joint Civil Judge, Civil Judge, Senior Division, Nagpur, to consider the MJC No. 130 of 2009 in the light of case law mentioned above and also to consider the entitlement of the petitioner – plaintiff to file it due to the agreement between the parties. 3 As the matter is old and it appears that it pertains to close relatives, the said Court shall attempt to decide MJC as early as possible and in any case by 30th June 2010. The parties to appear before that Court on 20th March 2010 and to abide by its further directions in the matter. Writ Petition is disposed of. Rule accordingly. No order as to costs. Certified copy expedited. JUDGE *GS.