1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1518 OF 2010 IN SUMMARY SUIT NO.2748 OF 1995 Deirdre Lyra Legal heir of Sheila Dyre ...Plaintiff Vs. M/s. Om Computers & Ors. ...Defendants Mr.S.C. Naidu i/b. C.R. Naidu & Co., for Plaintiff Ms. Mamta Sadh i/b. Swapnila Rane for Defendant No.3/applicant CORAM : SMT. ROSHAN DALVI, J. DATED : 2ND JULY, 2010 P.C. : 1. This Notice of Motion is under Order 37 Rule 4 of the C.P.C to set aside the Ex-parte decree passed in the above Suit on 7th October 1996 consequent upon the appearance of Defendant No.3 not having been entered within 10 days as required upon the service of writ of summons on 4th August 1995. This Notice of Motion is taken out on 23rd June 2010 after a delay of 14 years. The Defendant No.3 must explain the delay as also the merits of the case to show the special circumstances as required under the aforesaid provision. Defendant No.3 has produced certain copies of certain prescriptions to claim that he suffers from schizophrenia. The prescriptions are from 21st August 1996. The decree was passed on 7th October 1996. 2 Whatever that Defendant No.3 suffered was for a period of 1½ months prior to the decree. However, the summons was served on 4th August 1995. He had to enter his appearance by 14th August 1995. There is nothing produced to show that he suffered from any ailment on 14th August 1995. In any event the first prescription of Defendant No.3 showing certain pill and a certain liquid being prescribed does not show that he was in such an unfit condition as not to be able to enter his appearance. 2. Further prescriptions are relied upon to show how he continuously suffered from Schizophrenia over a period of last 14 years. These prescriptions are until 27th November 2003. Hence even that delay after 2003 is not explained even assuming that prescriptions simplicitor would show sufficient cause to condone delay. 3. Mr. Naidu drew my attention to the fact that in between this period the Defendant No.3 took out a Chamber Summons in the execution proceeding and an appeal therefrom, both of which came to be dismissed. Even whilst those proceedings were taken out, presumably for no instructions given by Defendant No.3 to his Advocate, no Notice of Motion for setting aside the decree itself was taken out. 4. This Notice of Motion is, therefore, hopelessly delayed. The delay cannot be condoned. 5. Notice of Motion is dismissed. (SMT. ROSHAN DALVI, J.)