1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 46. WP/1851/2010 (JANKABAI MANJABAPU DHAWALE V/S MANORAMA SUDHAKAR GAWDE) With CA/13331/2010 In WP/1851/2010 -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. A.S.Zarekar, Adv., for the petitioner. Mr.N.T.Tribhuwan, Adv., for R.1. ... CORAM: K.U.CHANDIWAL, J. DATE:19/10/2010 1. Heard. In RCS No.469/2000, owing to purported absence of the defendant, decree was recorded on 17.10.2001. The defendant moved application being application No. 49/2003, below Exh.51, seeking setting aside such ex parte order in terms of Order 9 Rule 13 C.P.C. The learned Judge, by his order dt.13th Feb.,2009, on evaluating the evidence, condoned the delay in making application for setting aside ex parte decree. Same is impugned in this writ petition. 2 2. The grievance of the writ petitioner is the Bailiff report in all material particulars, comply provisions of Order 5 Rule 17 C.P.C. and, therefore, there was no justification on the part of the learned Judge in codoning the delay.. He also informs, the defendant consciously refused to accept the service of summons and, thereafter cannot raise a plea that the summons were not properly served. 3. Learned Judge, while entertaining application had opportunity and access to verify the original record and in paragraph 12 he has assigned reasons for not believing the Bailiff report and felt that it was doubtful. This finding of fact recorded by the learned Judge, cannot be and should not be questioned in writ. That apart, the issuance date of the summons is 26.9.2000, the place of so called service of the defendant is informed to be 5 to 7 kms away from the Court premises. Even if 3 all the facts are considered the service could not be effectively possible on 26.9.2000. The doubt is raised by the learned Judge in paragraph nos. 11 and 12 cannot be questioned. The order under challenge passed by the learned Judge is in tune with the legal position. The application to condone delay having been properly considered, no interference. Writ petition is dismissed. No costs. Civil Application disposed of. Interim relief vacated. (K.U.CHANDIWAL) JUDGE ... AGP/1851-10wp