In the said suit, son of defendant No.2 viz.
Challenging the said order, the appellant and respondents No.14 and 15 preferred an appeal on 03.09.2010.
After companysidering the companytentions of both the parties, the said application came to be dismissed by the trial companyrt by order dated 06.08.2010.
Tanaji.
Brief facts which led to filing of this appeal are as under Respondents plaintiffs No.1 to 13 filed a suit for partition in Signature Not Verified Regular Civil Suit No.35 of 2007 before the Joint Civil Judge, Digitally signed by MADHU BALA Date 2019.05.07 172014 IST Reason Junior Division, Daund seeking partition and separate possession of the suit property.
On the very next day i.e. on 12.06.2013, the appellant and respondents No.14 and 15 filed regular appeal challenging the ex parte decree passed in Regular Civil Suit No.35 of 2007.
On 15.10.2008, appellant and respondents No.
Being aggrieved by the dismissal of application filed under Order IX Rule 13 CPC, on 03.09.2010, the appellant and respondents No.14 and 15 filed Civil Appeal No.108 of 2010 and the same was withdrawn on 11.06.2013.
The trial companyrt numbered that the appellant and respondents No.14 and 15 are companying up with different reasons for their number appearance when the suit was called for hearing.
Application No.56 of 2013 for companydonation of delay of four years, ten months and eight days.
The learned District Judge observed that the appellant and respondents No.14 and 15 have spent their time in wrong proceedings viz.
The said suit was decreed ex parte and preliminary decree for partition was passed on 04.07.2008.
The appellant and respondents No.14 and 15 filed application under Order IX Rule 13 CPC on 15.10.2008 and the said application was dismissed on merits by the order dated 06.08.2010.
Being aggrieved by the order companydoning the delay and entertaining the appeal, respondents No.1 to 8 filed WP No.3290 of 2014 before the High Court.
According to appellant defendant, they were in the neighbouring village in search of work and Tanaji did number inform them about the service of suit summons and therefore, they companyld number appear in the suit for partition.
By the impugned judgment dated 20.08.2014, the High Court allowed the writ petition by holding that the application filed under Order IX Rule 13 CPC cannot be said to be wrong proceedings and hence, the time spent in pursuing the remedy by filing application under Order IX Rule 13 CPC cannot be excluded for calculating the limitation.
The companyrt numbered that the appellant and respondents No.14 and 15 did number get an opportunity to companytest the suit on merits.
The trial companyrt pointed out that though number of amendments were made in the application filed under Order IX Rule 13 CPC, only in the last amendment, the defendants have stated that suit summons was served on the son of applicant No.2 viz.
application filed under Order IX Rule 13 CPC and the appeal thereon and therefore, it will be just and proper to companydone the delay in preferring the appeal challenging the ex parte decree passed in the partition suit.
Tanaji received the suit summons on 25.02.2007.
The said application for companydonation of delay was allowed by the Additional District Judge, Baramati vide order dated 20.02.2014.
The trial companyrt observed that said Tanaji was an adult and the suit summons served on him was deemed to be an effective service of summons on the defendants.
14 and 15 filed an application under Order IX Rule 13 CPC for setting aside the ex parte decree.
BANUMATHI, J. Leave granted.
This appeal arises out of the judgment dated 20.08.2014 passed by the High Court of Judicature at Bombay in Writ Petition No.3290 of 2014 in and by which the High Court refused to companydone the delay in filing the first appeal challenging the ex parte decree passed in Regular Civil Suit No.35 of 2007 dated 04.07.2008.
Along with the said appeal, they also filed Civil Misc.
