1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8612 OF 2007 Dhanrajmal Radhakisan Nagpal and Ors. .. Petitioners Versus Ramesh Prataprao Shirole and Ors. .. Respondents Mr.V.G.Mujumdar for petitioners CORAM : S.C.DHARMADHIKARI, J. DATE : 25th March 2008 P.C. . The petitioners are aggrieved by the rejection of an application (Exh.12) in M.A. No.34 of 2007. A copy of that application is 2 annexed as Annexure "G". The same is dated 18th July 2007. Petitioners have applied for setting aside an ex parte decree in Civil Suit No.359 of 1992. The said decree was passed by learned Judge, Small Causes Court on 9th October 1995. 2. The petitioners have applied for setting aside that ex parte decree but that application, according to opponents is allegedly delayed. Therefore, an application seeking condonation of delay was also filed and both applications are pending. 3. In the meanwhile, the opponents - decree holders are executing the said decree and they have applied by Regular Darkhast No.111 of 2007. The apprehension of petitioners is that if the decree is executed, then, all proceedings would be rendered infructuous. In such circumstances, till the application for setting aside the ex parte decree and the application for condonation 3 of delay is heard, the decree may not be executed. 4. That application was opposed only by Opponent No.2 and his opposition proceeds on the basis that the petitioners are not entitled to have the decree set aside as they have no locus standi. 5. It appears from a perusal of the impugned order that the learned Judge has completely misdirected himself. What was before him was a request to stay execution proceedings and admittedly the learned Judge was concerned with the execution thereof. Similarly, the learned Judge is also presiding over as a Judge of Small Causes Court, Pune and, therefore, he could have taken cognisance of other objections as well, according to Mr.Mujumdar. 6. Be that as it may, when none have 4 appeared before me to oppose the petition and admittedly the miscellaneous application so also the application for condonation of delay is pending, the request made by the petitioners should have been granted by the learned Judge and he could have stayed the execution of the subject decree. 7. In such circumstances, the order under challenge is set aside. The decree in Suit No.359 of 1992 not to be executed till M.A.34 of 2007 is heard and decided. Similarly, the learned Judge to take up the said application for condonation of delay and if the delay is condoned, proceed to decide the main matter (application for setting aside ex parte decree) as well as expeditiously as possible. 8. Parties to appear before the concerned trial court on 9th April 2008. Learned Judge to take up application for condonation of delay 5 first and hear the parties and pass appropriate orders thereon in accordance with law, as expeditiously as possible and within a period of four weeks from the date of appearance of parties. If the delay is condoned, then, the learned Judge to take up application for setting aside the ex parte decree and dispose of the same as well. All contentions of both sides insofar as applications are concerned are kept open. Execution of the decree is stayed only because proceedings should not be rendered infructuous. Petition allowed in the above terms. No costs. (S.C.Dharmadhikari, J)