1 wp868.11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 868 OF 2011 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. V.S. Janephalkar, Advocate for the petitioner. Mr. N.D. Sowanwane, Advocate for respondent nos.1 and 2. Mr. Vinay B. Anjanvatikar, Advocate for respondent nos. 3 and 4. 1. Respondent nos.1 and 2 have filed application under Order 9 Rule 13 of the Civil Procedure Code and in that the petitioner-decree-holder contended that application was hopelessly barred by limitation. He further pointed out that there was no separate prayer for condonation of delay and therefore requested to frame the preliminary issue and to decide it first. 2. The trial Court after hearing all the parties concerned found that the contention before it was of filing proceedings immediately after getting the knowledge of the exparte judgment and decree. It relied upon one precedent to hold that such filing after getting knowledge 2 wp868.11 is permissible. 3. However, it also found that in facts before it, the question required adjudication and therefore, same is to be looked into along with evidence on merits. 4. I therefore do not see any jurisdictional error or perversity. Whether summons was validly served and therefore the respondent nos. 1 and 2 had due knowledge or whether they got knowledge for the first time as alleged in their application under Order 9 Rule 13 of the Civil Procedure Code is the question and the trial Court has rightly found that it can be decided on merits instead of framing preliminary issue. The objections raised by the petitioner-decree holder are still alive and the trial Court is going to consider the same after parties adduce the evidence. 5. I do not find any jurisdictional error or perversity. Petition is therefore rejected. No costs. (B.P. DHARMADHIKARI) JUDGE. 15.02.2011 gas/wp868.11