1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 244 OF 2009 Smt. Himmat Kaur. ..Applicant. Vs. Gyansingh Harsingh (since deceased) through L.R.s. ..Respondents. Mr.H.S.Shreepad Murthy for the Applicant. Mr. Durgaprasad S. Sabnis for the Respondents. CORAM : R.S. MOHITE, J. DATE : 22ND JULY, 2009 PC : 1. This is a civil application filed by the original defendant against whom court of Small Causes had passed an exparte decree on 2.11.2006. The facts indicates that the suit was filed in the year 1998 and the summons to answer the plaint was served upon the defendant on 16.2.1999 and the advocate filed his memo of appearance on behalf of the defendant on 26.2.1999. Thereafter, on behalf of the defendant no written statement was filed and ultimately by an order dated 20.2.2005, the 2 order proceeding the suit without W.S. and exparte came to be passed. In the year 2006, the evidence of the plaintiff was recorded. On the basis of the said evidence, suit was decree on merits by an exparte judgment and order dated 2.11.2006. After delay of more than four months, on 12.4.2007, an application Under Order 9 Rule 13 came to be filed for setting aside the exparte decree. Same was dismissed by the trial court on the footing that same was not maintainable. The applicant carried the matter in appeal and though the appellate court held that the application was maintainable, it dismissed the appeal on merits holding that no case was made out by the defendant for setting aside the exparte decree. The appellate court has observed that in order to justify the non filing of written statement for about 7 years, the defendant had contended that in the year 2002, her son had settled the dispute by paying Rs.15,000/- to one of the plaintiff who had accepted the amount on behalf of the other plaintiffs and they were under the 3 impression that the suit must have withdrawn. As rightly held by the appellate court that the amount of Rs.15,000/- was allegedly paid in cash but there was no receipt produced. Apart from this, it is rightly held by the appellate court that the stand taken by the defendant is not bonafide. The defendant s advocate had filed an affidavit in the trial court and placed on record that he had written a letter to the defendant calling upon her to give instructions for filing the written statement. The said letter was sent in 2004 and the copy of the letter along with acknowledgment was filed in the court by the said advocate. Receipt of this letter is accepted by this defendant, It is therefore, clear that, in 2004, the defendant was aware that the suit was pending and the same was not withdrawn by the plaintiffs. In such circumstances, the reasoning given by the appellate court cannot be faulted. There is no error on the face of the record in the order of the appellate court. Hence, application is 4 rejected. 2. At this stage prayer is made to continue the interim reief granted by the lower appellate court. It is seen that, in this case, the defendant is residing with her son and there is a care taker who has obstructed the decree. In the circumstances, prayer is rejected. ( R.S. MOHITE, J.) 5 6 7 8 CORAM : D.K.DESHMUKH & R.S.MOHITE, JJ. DATE : 8TH JUNE, 2009 P.C. . Rule, returnable on 8th June, 2009. 2. Stand over to 8th June, 2009. The learned counsel for the state seeks time. (D.K.DESHMUKH, J.) (R.S.MOHITE, J.)