: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.129 OF 2009 ALONGWITH CIVIL APPLICATION NO.148 OF 2009 Tirupati Computer Stationers Pvt. Ltd. .. Appellant V/s. Natwarlal & Co. .. Respondent Mr. R.M. Haridas i/b. Mr. P.N. Joshi for the Appellant-Applicant. Mr. R.V. Govilkar for the Respondent. CORAM : SMT. NISHITA MHATRE, J. DATED : 2 ND DECEMBER, 2009. P.C.: 1. Heard. 2. Admit. Taken up for hearing forthwith. 3. The appellant has preferred this Appeal from Order against the order dated 14th October, 2008 passed by the Xth Joint Civil Judge, Junior Division, Pune by which the Miscellaneous Application No.230 of 2007 filed by the appellant- applicant, for setting aside the ex-parte decree : 2 : passed in Regular Civil Suit No.5270 of 2000, was dismissed. The ex-parte decree was passed on 3rd July, 2002. According to the appellant-applicant, he became aware of the ex-parte decree only in October, 2006. Thereafter, he collected the necessary papers and applied for certified copies of the Judgment and Decree. He received those papers on 8th November, 2006. It appears that the appellant-applicant then filed application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree on 28th February, 2007. The trial Court has rejected this application on the ground that the appellant-applicant had approached the Court after a delay of 4 years and 2 months by filing an application under Order 9 Rule 13 of the Code of Civil Procedure. It was also held that the appellant-applicant had not made out sufficient grounds for condoning the delay or for setting aside the ex-parte decree. The appellant- applicant had contended before the trial Court that he was unwell and due to medical advice he was unable to approach the Court immediately after obtaining the certified copies of the decree. The : 3 : trial Court has not believed this contention of the appellant-applicant since the appellant-applicant had failed to examine any Doctor from the hospital in which he was being treated. 2. I have heard the parties at length. The contention of the learned Advocate for the appellant-applicant is that a medical certificate has been produced before this Court indicating that the appellant-applicant was under medical treatment and had been advised rest. He submits that reasonable attempts were made by the appellant- applicant to approach the Court as expeditiously as possible for setting aside the ex-parte decree of which the appellant-applicant became aware on 1st November, 2006. 3. The learned Advocate for the respondent vehemently opposes this submission and contends that the trial Court has rightly observed that the appellant-applicant had not made out any sufficient or reasonable ground for setting aside the decree. : 4 : 4. There is undoubtedly a medical certificate issued by Sant Eknath Hospital on 26th November, 2006 which indicates that the appellant-applicant was being treated as an outdoor patient in the hospital for Diabetes Mellilis with Asthmatic Bronchitis. He had been advised rest by the Doctor till 25th November, 2006 and for one month thereafter. In my opinion, therefore, the appellant-applicant has made out reasonable and sufficient cause to set aside the ex-parte decree. However, there is no doubt that the appellant- applicant has been negligent from December, 2006 to February, 2007 when the Miscellaneous Application No.230 of 2007 was filed. In view thereof, the ex- parte decree can be set aside only on certain terms and conditions. 5. Accordingly, the order dated 14th October, 2008 passed by the Xth Joint Civil Judge, Junior Division, Pune is set aside. 6. The Miscellaneous Application No.230 of 2007 is allowed on condition that the appellant-applicant : 5 : pays costs of Rs.5,000/- to the respondent within a period of four weeks from today. 7. The ex-parte decree is accordingly set aside. It is made clear that if the appellant fails to pay the aforesaid amount within the stipulated time, the ex-parte decree shall revive. 8. The Appeal from Order is allowed. 9. In view of the above, Civil Application No.148 of 2009 pending in the Appeal from Order does not survive and the same is dismissed. .......