- 1 - ao720.ca971 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.720 OF 2011 with CIVIL APPLICATION NO.971 OF 2011 Anwar ul Haque Hasan Raja .. Appellant vs 1.The Municipal Corpn of Gr.Mumbai.. Respondents & anr Mr.M.V.Holmagi for the Appellant Ms.K.K.Soran for Respondent No.1 Ms.Savina Bangera i.b Mr.A.R.Mishra for Respondent No.2 CORAM: J.H.BHATIA, J DATE: 12 th August 2011 P.C. 1. Heard learned counsel for the parties. 2. The Appeal is preferred by the original Defendant against the Notice of motion taken out by him on 7th May,2011 for setting aside the - 2 - ao720.ca971 decree passed on 26th August,2010 in Suit no. 5474 of 2004 filed by the Respondent No.2 for certain reliefs. It was an ex parte decree and he had taken out Notice of motion for setting aside the decree beyond the period of 30 days prescribed under the Limitation Act. The learned Judge of the City Civil Court rejected that Notice of motion summarily on the ground that no Application was filed under section 5 of the Limitation Act for condonation of delay in filing the Application under Order 9 Rule 13 of the Code of Civil Procedure. That order is challenged in the present Appeal. 2. Admittedly, the decree was passed in the Suit on 26th August,2010 and Application for setting aside the said decree was filed in the form of Notice of motion on 7th May,2011 which was beyond the period of limitation of 30 days. 3. Chapter 19 of the Civil Manual consists of paragraph 337, 338 and 339 clearly prescribes - 3 - ao720.ca971 that Application for proceeding under section 5 of the Limitation Act has to be filed and to be registered in a particular proforma. As there was no Application for condonation of delay under section 5 of the Limitation Act the learned Judge rightly pointed out the procedure prescribed in Chapter 19 of the Civil manual and as there was no such Application he rejected the Notice of motion summarily. No fault can be found with the impugned order. 4. At this stage, learned counsel for Defendant No.2-Appellant seeks liberty to take out fresh Notice of motion with Application under section 5 of the Limitation Act for condonation of delay. In my opinion, in the interest of justice such liberty should be given. 5. Therefore, while the Appeal is dismissed, liberty is granted to the Appellant to take out fresh notice of motion with an application for condonation of delay under section 5 of the - 4 - ao720.ca971 Limitation Act. 6. As the appeal itself is disposed of, Civil Application does not survive and is disposed of accordingly. J.H.BHATIA, J