: 1 : FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPEAL FROM ORDER NO.790 OF 2007 WITH CIVIL APPLICATION NO.1106 OF 2007 IN NOTICE OF MOTION NO.718 OF 2007 IN S.C.SUIT NO.735 OF 2004 -------------------------------------------------------------- Office Notes, Office Memoranda Court’s or Judge’s orders of Coram, appearances, Court’s . orders or directions and . Registrar’s orders . -------------------------------------------------------------- Mr.C.K. Tripathi for the Appellants. Mr.H.P. Ingle i/b Mr.N.K. Mudnaney for the Respondent. CORAM : S.J. VAZIFDAR, J. DATED : 14TH OCTOBER, 2008. P.C. : 1. Admit and heard finally. 2. The Appeal is against the order of the learned trial Judge dismissing the Appellants/Defendants’ Notice of Motion for setting aside an ex-parte decree. On the earlier occasion, it was suggested that the writ of summons was served on Defendant No.2. The record and proceedings were therefore called for. It : 2 : appears now that Defendant No.2 was served, if at all, by substitute service. This was not the basis of the contention in the affidavit in reply. I will presume without going into the matter in detail that Defendant No.2 was not aware of the filing of the suit and that the notice was not received by him. As Defendant Nos.1 and 2 are father and son, no purpose would be served by the decree being passed against one of them. 3. In the circumstances, the impugned order is set-aside. The ex-parte decree is set-aside. The suit is restored to file. The Defendants shall not make any further application for adjournment. Further this order is subject to the Appellants paying to the Respondent the costs fixed at Rs.5000/- within eight weeks from today. If the costs are not paid, the ex-parte decree shall stand. The trial Court is requested to accord to the suit priority on the basis of the day it was filed. 4. The Appeal from Order is : 3 : accordingly disposed of. The Civil Application is also disposed of.