- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.385 OF 2005 IN NOTICE OF MOTION NO.2635 OF 2004 IN SUIT NO.1978 OF 1996 Hansa India Corporation ...Appellant v/s. Oxford Industries ...Respondent ... Ms.Sweta Doshi for the Appellant. Mr.Mahesh Londhe i/b Sanjay Udeshi & Co. for the Respondent. ... CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 25TH MARCH, 2009 - 2 - P.C.: 1. By this appeal the Appellant challenges the order dated 15th September, 2004 passed by the learned single Judge of this Court in Notice of Motion No.2653 of 2000. That Notice of Motion was taken out by the present Appellant, who was Defendant in Suit No.1978 of 1997. The Appellant-Defendant was served with the suit summons in the year 1997. Till the year 2004 he did not file his written statement. Therefore, accepting the averments made in the plaint at their face value, the court decreed the suit by order dated 26th July, 2004. For setting aside that order Notice of Motion No.2635 of 2004 was taken out by the Defendant. That Notice of Motion has been dismissed by the learned single Judge by order dated 15th September, 2004. The present Appeal is preferred against that order. 2. Perusal of the order dated 26th July, 2004 clearly shows that it was a decree passed under Order VIII of Civil Procedure Code. Notice of Motion for setting aside that decree was not maintainable. The - 3 - remedy of the Defendant was to file an appeal against that decree. Even, today in the present appeal, decree passed pursuant to the order dated 26th July, 2004 is not challenged. Really speaking, therefore, appeal itself is not maintainable as the Notice of Motion itself was not maintainable. The learned Counsel for the Appellant relied on the judgment of the Supreme Court in the case of Balraj Taneja and another v/s. Sunil Madan and another, (1999) SCC 396 and the judgment of the learned single Judge of this court in the case of Steamship Mutual Underwriting Association (Bermuda) Ltd. v/s. Thakur Shipping Company Ltd., 2001 (2) Mh.L.J 392 to contend that the order dated 26th July, 2004 passing decree was not an order made under Order VIII Rule 5 because the learned Judge who passed the order had not applied his mind to the material on record. In our opinion, even assuming that the learned Counsel appearing for the Appellant is right in saying that the learned single Judge could not have passed the decree in the manner in which he has passed, but still it will be an illegal decree passed under Order VIII, the remedy against which is to file an appeal and there is no provision for filing a Notice of Motion for setting aside that decree. - 4 - 3. Even assuming that the Notice of Motion was maintainable, we do not find any substance in the Appeal. Because, the Appellant was served with the suit summons in the year 1997. In the affidavit filed in support of the Notice of Motion the Defendant says that he visited Mumbai in the year 1998 for the purpose of instructing his advocate to file a written statement in both the suits. Written statement is filed in other suit being Suit No.1938 of 1996 and he further states that he had not given instruction to his advocate to file written statement in the present suit, because he fell ill and that his illness was diagnosed to be kidney failure and therefore, he was under treatment. He craves leave to refer to and rely upon the medical papers to substantiate his contention. 4. Firstly, no date is given when the written statement in Suit No.1938 of 1996 was filed, no date is given when the Appellant was taken ill. No information is given about the period during which he was under treatment or in the hospital. The Appellant seeks leave of the court to refer to and rely upon the medical papers. Therefore, we asked - 5 - the learned counsel to produce the medical papers. She was unable to do it. Therefore, we do not find any error in the order of the learned single Judge declining to accept the explanation given by the Appellant. 5. Taking overall view of the matter, therefore, we find no substance in the appeal. It fails and is dismissed. No order as to costs. (D.K.DESHMUKH, J.) (A.A.SAYED, J.)