: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.2121 OF 2006 FIRST APPEAL NO.2121 OF 2006 FIRST APPEAL NO.2121 OF 2006 WITH WITH WITH FIRST APPEAL (ST.) NO.3800 OF 2008 FIRST APPEAL (ST.) NO.3800 OF 2008 FIRST APPEAL (ST.) NO.3800 OF 2008 Rajendra Shankar Inde ...Appellant (in both Appeals) V/s. Nagendra Shankar Inde ...Respondent (in both Appeals) Mr.S.S. Shah, Advocate, for the Appellant. . Mr.G.S. Godbole with Mr.A.S. Kulkarni, Advocates, for the Respondent. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 22ND FEBRUARY, 2008. DATE : 22ND FEBRUARY, 2008. DATE : 22ND FEBRUARY, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. Submissions of the Advocates appearing for the parties were heard on the last date. The challenge in the First Appeal No.2121 of 2006 is to the Judgment and Decree dated 1st March, 2003 passed by the Trial Court in a suit for partition and separate possession filed by the respondent. The said decree is a preliminary decree of partition. The challenge in the First Appeal (St.) No.3800 of 2008 is to the final Decree dated 28th March, 2005 passed by the Trial Court on the basis of the preliminary decree. 2. The submission of the learned Advocate for the appellant is that the impugned preliminary decree was passed in a hurried manner by the Trial Court without : 2 : giving a proper opportunity to the appellant to defend himself. He has invited my attention to the roznama of the proceedings of the suit. He submitted that an opportunity deserves to be granted to the appellant to defend the suit as his case is of prior partition. 3. The learned Counsel appearing for the respondent opposed the said submissions by placing reliance on the evidence adduced in final decree proceedings. His submission is that in view of the admissions of the appellant recorded in the final decree proceedings, no fault can be found with the impugned preliminary decree. He submitted that the applicant has participated in the proceedings of the final decree and, therefore, no interference is called for with the preliminary decree. 4. I have considered the submissions. It must be stated here that the present Appeal No.2121 of 2006 was filed on 3rd October, 2005 alongwith an application for condonation of delay. On 19th July, 2006 the delay was condoned subject to payment of costs. Thereafter the First Appeal No.2121 of 2006 remained pending in this Court for admission. I have perused the roznama of the proceedings. The suit was instituted on 7th October, 2002. Summons was issued : 3 : returnable on 20th November, 2002. On the returnable date, the appellant filed appearance and the suit was adjourned to 12th December, 2002 for filing written statement. On 12th December, 2002, the suit was adjourned to 8th January, 2003 when time was again granted to the appellant to file written statement. On 6th February, 2003, an order was passed by the Trial Court directing that the suit will proceed without written statement. A preliminary decree has been passed under Rule 10 of Order VIII on 1st March, 2003 against the appellant. 5. In my view an opportunity deserves to be granted to the appellant to defend the suit by setting aside the decree. However, the appellant will have to pay heavy costs to the respondent. 6. A submission was made by the Counsel for the respondent that the appellant is in possession of a valuable property and therefore, appropriate interim arrangement deserves to be made during the pendency of the suit in case this Court is inclined to pass an order of remand. However, parties are unable to agree to any interim arrangement. It is, therefore, obvious that after the remand, it will be open for the respondent-plaintiff to take out appropriate : 4 : application for interim relief including an application for appointment of a Court Receiver. 7. Considering the facts and circumstances of the case, amount of costs is quantified at Rs.15,000/-. 8. As the preliminary decree is being set aside, the final decree passed on the basis of the preliminary decree will have to be also set aside. Hence, I pass following order:- "O R D E R" "O R D E R" "O R D E R" (a). The impugned Judgment and Decree dated 1st March, 2003 passed in Special Civil Suit No.285 of 2002 is quashed and set aside and the said suit is restored to the file. Consequently, Decree dated 28th March, 2005 passed in Final Decree Application No.6 of 2003 is set aside. The Special Civil Suit No.285 of 2002 is restored to the file. (b). The parties are directed to appear before the learned Trial Judge on 31st March, 2008 at 11:00 a.m. (c). It will be open for the appellant to : 5 : file written statement on the next date or within a period of four weeks from the date of appearance. (d). It is made clear that no further time will be granted to the appellant to file written statement under any circumstances. (e). Advocate for the appellant has already handed over a Demand Draft in the sum of Rs.15,000/- drawn in favour of the respondent to the Advocate for the respondent in this Court. This amount has been paid by way of costs of the Appeals. (f). After remand, it will be open for the respondent to file appropriate application for claiming appropriate interim relief including a relief of appointment of Court Receiver. (g). The suit shall be disposed of as expeditiously as possible and preferably within a period of six months from today. (h). The Appeals are partly allowed in above terms. : 6 : (i). Parties and concerned Court to act upon an authenticated copy of this order. (j). Writ to be sent down immediately. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]