1 wp5085-11.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5085 OF 2011 Prashant Vitthal Gardi .. Petitioner Versus Parshuram Bhau Diwate .. Respondent Mr. Vishwanath Talkute a/w Mr. Satish Kumbhar i/by Mr. Prashant D. Jadhav, for the Petitioner Mr. Yogendra M. Kanchan for the respondent CORAM: R. M. BORDE, J. DATED : 22nd August, 2011 P. C. 1. Rule. Rule made returnable forthwith. 2. With the consent of the learned counsel appearing for the parties, taken up for final disposal at the admission stage. 3. Heard Mr. Talkute, the learned counsel for the petitioner and Mr. Kanchan, the learned counsel for the respondent. 4. Order passed below Exh.10 in Special Darkhast 37 of 2010 is subjected to challenge at the instance of the petitioner in this petition. 2 wp5085-11.sxw 5. The Petitioner is a original defendant in Regular Civil Suit No. 427 of 2009 presented by respondent original plaintiff. The suit was for grant of decree of specific performance of agreement. The suit was decreed ex-parte by the judgment and decree dated 14th July, 2010. Since as per the petitioner- the original defendant- the decree passed by the trial Court was ex-parte one, he tendered an application at Exh.10, requesting the Court to set aside the ex-parte decree passed in RCS No. 427 of 2009. Inadvertently the application was presented in Execution Application No. 37 of 2010 and the Court also treated the application presented by the defendant-petitioner herein to be an application tendered in Execution Application and proceeded to reject the same. 6. I have perused the application and the prayers made made therein. The applicant has made the following prayers: i. That this Hon’ble Court may be pleased to set aside the Ex-parte Judgment and Decree dated 14/7/2010 passed in Spl. Civil Suit No. 427/2009 on such terms and conditions as this Hon’ble Court may deem fit proper. ii. Pending the hearing and final disposal of the present Application this Hon’ble Court be pleased to stay the Execution Proceedings No.37/2010 in Special Civil 3 wp5085-11.sxw Suit No.427 of 2009. iii. Any other and further relief as per the nature and circumstances of the case may require.” 7. On consideration of the prayers made in the application, the petitioner is justified in contending that the application was in fact tendered for setting aside the ex-parte judgment and decree dated 14th July, 2010 passed in Special Civil Suit No. 427 of 2009. However, inadvertently, in the title clause of the application, it is mentioned that the application is presented in Execution Application No. 37 of 2010. It appears to be an inadvertent mistake and considering the tenor of the application and the prayer made therein, it has to be treated as an application, independently made seeking relief in respect of setting aside the ex-parte judgment and decree and by no stretch of imagination, it can be treated to be an application in execution proceedings. 8. In the facts and circumstances of the case, therefore, it shall be directed to the trial Court to re-consider the application tendered by the petitioner-original defendant, in accordance with law. 9. The petitioner- original defendant shall have liberty 4 wp5085-11.sxw to tender suitable application seeking correction in the title clause of the application. and if such application is made, the trial Court shall consider it favourably. 10. The Trial Court shall proceed to decide the application tendered by the petitioner-original defendant under order 9 Rule 13 of the Code of Civil procedure, in accordance with the provisions of law and after extending opportunity of hearing to all the parties concerned. 11. The order passed by the trial Court below Exh.10 in Special Darkhast No. 37 of 2010 dated 8th March, 2011 is quashed and set aside. 12. Rule is made absolute in the above terms. No costs. ( R. M. BORDE, J.)