1 wp2628.11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2628 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. G.G. Suryawanshi, Advocate for the petitioner. CORAM : B.P. DHARMADHIKARI, J. DATE : 25th APRIL, 2011 Contention is the notice of hearing of appeal was not served upon the petitioner. Then R.C.A. No. 79/2005 was taken up for hearing and hence after getting knowledge of the fact that it has been allowed, the application seeking its rehearing under Order 41 Rule 21 of the Civil Procedure Code was filed, which came to be registered as Civil Misc. Application (R.J.E.) No. 199/2009. The Principal District Judge, Parbhani has taken erroneous view and held that that proceeding was time barred. As notice of hearing was not served, the limitation began from the date of knowledge as contemplated by Article 123 of the Limitation Act. 2 wp2628.11 2. Perusal of impugned order reveals that after appeal was instituted, notice of hearing was sent and it was served in accordance with Order 5 Rule 15 of the Civil Procedure Code upon the son of the present petitioner. The petitioner did not appear and matter was then taken up for final hearing. No provision requiring fresh notice to be served upon the petitioner by appellate Court in such situation is pointed out. 3. Reliance is being placed upon the judgment of the Hon'ble Apex Court reported at "2010 A.I.R. SCW 4799"- ( Bhagmal and others V/s Kunwar Lal and others), particularly paragraph no.8. Facts mentioned in paragraph no.8 clearly show that the proceedings then pending were promised to be terminated because of out of Court settlement. The proceedings were not so terminated and were continued. The Hon'ble Apex Court noticed that there was no notice to appellant before it of such continuation. The Judgment therefore has no application in the present facts. 4. Other judgment reported at " 2007 A.I.R. SCW 6400"- M/s Nahar Enterprises V/s M/s Hyderabad Allwyn Ltd., and another again shows that there summons was made returnable on 10.10.1988 and it was served on 14.10.1988 i.e. after returnable date. In that background in paragraph no.11 the observations have been made which show that when initially summons were 3 wp2628.11 not duly served, the date of knowledge can be taken into account for the purpose of computing limitation. 5. In facts before me, the situation is different. Date of knowledge therefore has apparently not been looked into by Principal District Judge as relevant. There is no jurisdictional error or perversity. Petition is rejected. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp2628.11