1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6583 OF 2009 Shri Ramchandra Neminath Mohite & Ors. .. Petitioners Vs Sau Shobha Sahebrao Gadekar & Ors. .. Respondents -- Shri Vijay Killedar i/by Shri Nitin Jamdar for the Petitioners. Shri S.V. Sadavarte for the Respondent No.2. Shri Haribhau Deshinge for Resondent Nos.3 to 9. -- CORAM : A.S.OKA, J. DATE : 6TH APRIL, 2010 P.C: . On 2nd September, 2009, notice for final disposal at the admission stage was issued by this Court. By this Writ Petition under Article 227 of the Constitution of India, the Petitioners have challenged the order dated 7th July, 2009 passed by the Trial Court by which an application for condonation of delay has been rejected. The 1st and the 2nd Respondents filed a suit for partition and separate possession. An ex-parte decree was passed in the said suit on 19th August, 2005. The present Petitioners, who are some of the Defendants, have filed an application purporting to be an application under Order IX Rule 13 of the Code of Civil 2 Procedure, 1908 ( hereinafter referred to as the said Code ) for setting aside the alleged ex parte decree. An application for condonation of delay was made in the said application. The application for condonation of delay was opposed by the 1st and the 2nd Respondents and by the impugned order, the said application has been rejected by the Trial Court. 2. The learned counsel appearing for the Petitioners invited my attention to the findings recorded in the impugned order. He submitted that there is enough material on record to show that the delay deserved to be condoned. He invited my attention to the averments made in Paragraphs 2 and 3 of the application for condonation of delay. He submitted that a very hyper technical approach has been adopted by the learned Trial Judge. 3. The learned counsel appearing for the 2nd Respondent supported the impugned order. He pointed out the conduct of the Petitioners. He pointed out that in the application for condonation of delay, the Petitioners have stated that they did not appear in the suit due to drought like situation in the village. No material has been placed on record in support of the contention that there was a drought condition. He invited my attention to the compilation of documents filed in this Court. He submitted that the Petitioners are in possession of the very valuable property from which they are receiving substantial income and the 1st and the 2nd Respondents who are the original Plaintiffs have been completely 3 deprived of the income from the properties in which the Trial Court has held that the 1st and the 2nd Respondents have 1/3rd share each. He submitted that the finding of the Trial Court is that only the 1st Defendant has 1/3rd share in the suit property. He, therefore, submitted that this is not a case where this Court can interfere in writ jurisdiction under Article 227 of the Constitution of India. 4. I have given careful consideration to the submissions. The decree was passed on 19th August, 2005. The application for setting aside the ex parte decree along with the application for condonation of delay was filed in July, 2007. The case made out in the said application was that though the Petitioners appeared in the suit, later on they could not appear in the suit as they were forced to shift to some other village due to severe drought conditions. It is submitted that after the Petitioners were forced to shift to another village, in the meanwhile, the 1st and the 2nd Respondents proceeded with the suit and obtained a decree. It is also disclosed in the application that the 5th Petitioner got married in the meanwhile and she has started residing with her husband and in-laws. 5. It is well settled law that while dealing with Section 5 of the Limitation Act, 1963, a liberal and justice oriented approach is contemplated. The decree is of partition and separate possession of the lands. Considering the averments in the application, sufficient cause was made out for condonation of delay. However, the 1st and 2nd respondents 4 will be entitled to costs quantified at Rs.10,000/- from the petitioners. 6. The learned counsel appearing for the 2nd Respondent made a grievance that as a result of the condonation of delay, the Trial Court will grant stay to the decree for partition and therefore the Petitioners will continue to enjoy substantial income. In the application for setting aside the ex parte decree, if an application for stay is made by the Petitioner, 1st and the 2nd Respondents can always contest the said application and contend that even if the Court is inclined to grant stay, the same should be subject to compliance with the appropriate conditions which will protect interest of the 1st and the 2nd Respondents. 7. Hence, I pass the following order. (a) The impugned order is quashed and set aside and the application in the Civil Misc. Application No.226 of 2007 is allowed subject to the Petitioners paying costs of Rs.10,000/- to the 1st and the 2nd Respondents. (b) The learned counsel appearing for the Petitioners has handed over to the learned counsel appearing for the 2nd Respondent a Demand Draft in the sum of Rs. 10,000/- drawn in favour of the 2nd Respondent. The said Demand Draft has been accepted by the learned 5 counsel appearing for the 2nd Respondent without prejudice to the rights and contentions of the 2nd Respondent. (c) If any application for stay of the execution of the decree is made by the Petitioners, the same shall be decided in the light of the observations made by this Court. (d) Hearing of the application for setting aside the decree is expedited and the said application is to be decided within a period of six months from the date on which the writ of this order is received by the Trial Court. (e) The Writ Petition is disposed of in above terms. (A.S.OKA, J)