1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.67 OF 2010 Sau.Jainabai @ Jaywantabai Ananda Bhirud, Age 67 yrs. Occ: Housewife, Through Special Power of Attorney, Pandharinath Ananda Bhirud, R/at Waghali, Tal.Chalisgaon, & Dist: Jalgaon. ...PETITIONER VERSUS 1. Sau.Mainabai Popat Pachpande, Age 72, Occ. Household, r/o c/o. Popat Kacharu Pachpande, r/o Salve, Tal.Dharangaon, Dist. Jalgaon. 2. Sau.Jaywantabai Moreshwar Kolhe, Age 64, Occ. Household, r/o Salve, Tal.Dharangaon, Dist. Jalgaon. 3. Sau.Shantabai Namdeo Borole, Age 62, Occ. Household, r/o Salve, Tal.Dharangaon, Dist. Jalgaon. 4. Sau.Muktabai Khivraj Khadake, Age 57, Occ. Household, r/o c/o. Shivraj Sonu Khadke, Behind Old Nashirabad Naka, Jalgaon, Tal.& Dist. Jalgaon. ...RESPONDENTS ... 2 Miss Sadaf Quazi, Adv., h/f Mr. Javed R.Shaikh, Adv., for the petitioner. Mr. M.M.Bhokarikar, Adv., for R. nos. 2 to 4. ... CORAM: K.U.CHANDIWAL, J. DATE: 23/11/2010 *** PER COURT : 1. Heard both the Counsel. Setting aside ex parte decree is questioned. Following substantial question of law is formulated: " Whether, in the absence of application under Section 5 of Limitation Act or prayer anywhere, learned Judge could condone delay and restore the case ? Counsel waives notice. 2. On perusal of the judgment and even the basic application moved by the respondent dt. 16.9.2005, it is explicit that there was no prayer either in the petition or by separate application in terms of Section 5 of the Limitation Act, seeking to condone delay of 3 years 8 months and 13 days in making the application. The decree was dt.10.12.2001 while the application seeking restoration was dt. 3 16.9.2005. It was a suit for partition. However, record illustrates that respondent appeared through Counsel, did not file written statement in time, invited wrath of no written statement and, thereafter, moved application to set aside the same. The contention in the application that original defendants were not served with the summons is, in the fact situation, erroneous. The learned Judge, while entertaining application, pondered to provisions of Art.123 of the Limitation Act, oblivious to the basic requirement of application under Section 5 of the Limitation Act. 3. It is basic requirement that the learned Judge seized with the matter will have to first consider whether to condone the delay or not in terms of Section 5 of the Limitation Act and having satisfied on the case being made out by the party abstaining, he could have passed an appropriate order. Ignoring Section 5 of the Limitation Act, the learned Judge went on disposing of the application under Order 9 Rule 13 of Code of Civil Procedure on merits. This exercise is uncalled for, warrants interference. Substantial question of law answered in favour of appellant. 4. Civil Revision Application is allowed. The order under challenge is set aside. No costs. 4 5. It is clarified, having realized the practical difficulty, if the respondent applies to the learned Judge by separate application in terms of Section 5 of the Limitation Act, it is for the learned Judge to consider it on its own merits. (K.U.CHANDIWAL) JUDGE agp/67-10cra