JUDGMENT - KARNIK D.G., J.:-This motion is taken out by the defendant Nos. 3 and 4 for setting aside an ex parte decree dated 18th December, 2001 passed by this Court in Suit No. 334 of 1982. The facts, as far as they are relevant for the purpose of the present motion, are stated below:--

2. In the year 1982, the plaintiff filed the Suit bearing No. 333 of 1982 against the defendant No. 1 company and 4 others. The defendant No. 1 was joined as a formal party as suit involved the shares in the defendant No. 1 company which stood in the name of defendant Nos. 2 and 3 which were subsequently purchased by defendant Nos. 4 and 5. Suit summons was served on the defendant Nos. 4 and 5 in April 1982 and they filed an appearance in the Court on 22nd April, 1982 through M/s. Nanavati and Tijoriwalla, Advocates Solicitors. The defendant Nos. 4 and 5 did not file their written statement out changed their Advocates and on 15th September, 1982, M/s. Apte and Co., Advocates Solicitors filed an appearance on their behalf. They also did not file the written statement and on 6th June, 1990, Mr. V.P. Ganesh, Advocate filed an appearance on behalf of defendant Nos. 1, 4 and 5. Even then written statement was not filed and it appears that on 5th September, 2000, Mr. V.P. Ganesh, Advocate signed a no objection on the vakalatnama of Mr. Vashi, Advocate for filing his appearance in the suit on behalf of defendant Nos. 4 and 5. Mr. Vashi handed over the vakalatnama filing it in the Court to his cleark who through oversight did not file it on record. On 5th December, 2001, the suit was called out for ex parte hearing. None appeared on behalf of the defendant and the Court adjourned the matter to 13th December, 2001. On 13th December, 2001, also none appeared for the defendant and the Court adjourned the matter to 14th December, 2001. It appears that the matter did not reach hearing on 14th December, but was called out on 18th December, 2001. On that date also, none was present for the defendants. The plaintiff filed an affidavit in support of his suit claim and the Court accepted the said affidavit as examination-in-chief of the plaintiff. After considering the oral evidence of the examination-in-chief in the form of affidavit, the Court decreed the suit of the plaintiff. The defendant Nos. 4 and 5 have thereafter taken out this motion for setting aside of the ex parte decree.

3. The learned Counsel for the plaintiff opposes the motion on the following grounds:--

i) The decree has been passed under Order 8, Rule 5 or 10 and has not been passed under Order 9, Rule 6 of the Code of Civil Procedure and, therefore, an application for setting aside of the decree made under Order 9, Rule 13 of the Code of Civil Procedure is not maintainable.

ii) The application is barred by limitation and there is no justifiable reason for condonation of the delay.

iii) On merits, there is no sufficient cause for setting aside of the decree as there was no sufficient cause for the defendants to remain absent when the suit was heard on 18th December, 2001.

Regarding ground No. (i)

4. In (Dhanvantrai R. Joshi v. Satish J. Dave others)1, reported in 1999(1) Bom.C.R. (O.O.C.J.)97 , a Division Bench of this Court has held that there is no provision of setting aside of a decree passed under Rule 5 or Rule 10 of Order 8 of the Code of Civil Procedure for non filing of a written statement. There a decree has been passed under Rule 5 or Rule 10 of Order 8 of the Code of Civil Procedure, on account of non filing of a written statement, the only remedy open to the defendant against whom the decree is passed is to file an appeal and an application under Order 9, Rule 13 of the Code of Civil Procedure is not maintainable. Therefore, it would be necessary to examine whether in the present case, the decree has been passed under Rule 5 or Rule 10 of Order 8 of the Code of Civil Procedure or the Court passed the decree by proceeding ex parte under Order 9, Rule 6 of the Code of Civil Proced

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