This Civil Revision Application takes exception to the order dated 17011005 passed by the 2nd Adhoc Additional District Judge, Dhule in Civil M.A. No. 89 of 2003.

2. The background facts leading to file this Civil Revision Application as disclosed by the applicant are as under:

The applicant herein is the original plaintiff in Special Civil Suit No. 254 of 1996 and respondent No.1 herein is the local authority governed by the Statute and respondent Nos. 2 and 3 are the responsible and concerned officers of respondent No.1 and they are original defendants in the above mentioned Special Civil Suit No. 254 of 1996.

The applicant herein filed Special Civil Suit No. 254 of 1996 against the present respondents and in the said suit, the respondents appeared through their Counsel but they neither filed their written statement nor appeared for hearing. Hence, the trial Court decided the said special civil suit exparte.

The present applicant, after passing the exparte judgment and decree in the above mentioned suit, filed execution proceedings against the respondents. In the said execution proceedings also, the respondents appeared belatedly and filed application for stay of execution proceedings on 23031998, but the Executing Court rejected the said application.

It is the case of the revision applicant that, with malafide intention, the respondents herein filed application for restoration of the above referred suit under Order 9 Rule 13 of the Code of Civil Procedure beyond limitation with the application of condonation of delay. The said application for condonation of delay was numbered as Misc. Civil Application No. 109 of 1997. The trial Court, after recording the evidence of both the sides and after hearing the parties, rejected the said application for condonation of delay on 24042003, on the ground that, there is no sufficient cause made out by the present respondents for condonation of delay. Consequently, the said restoration application is finally disposed of by the learned trial Court.

Thereafter, the original defendants i.e. respondents herein, filed appeal against the exparte judgment and decree passed by the learned trial Court in Special Civil Suit No. 254 of 1996 after a long delay which is near about 61/ 2 years. The said appeal is accompanied with delay condonation application which is numbered and registered as Civil Misc. Application No. 89 of 2003. In the said Civil Misc. Application No. 89 of 2003 the respondents herein contended that, the above referred Misc. Civil Application No. 109 of 1997 was for restoration of the Special Civil Suit No. 254 of 1996, which was decided and decreed as exparte. According to the revision applicant, this fact itself shows that, the original defendants with malafide intention availed the different legal remedies one after another, in fact, the defendants could have take the precaution to avail proper single remedy or both remedies available to them simultaneously.

The said Civil Misc. Application No. 89 of 2003 for condonation of delay filed by the respondents herein, came to be allowed by order dated 17012005. Being aggrieved by the said order allowing the application for condonation of delay in filing the appeal by the District Court, Dhule, this Civil Revision Application is filed.

3. Learned Counsel appearing for the revision applicant submits that, the lower appellate Court exercised its jurisdiction with material irregularity in allowing the application for condonation of delay without taking into consideration the fact that, the remedy availed by the respondents and the application filed by them for condonation of delay are barred by the principles of “resjudicata” and “estoppel”. It is submitted that, the lower appellate Court exercised its jurisdiction illegally and not complied with the mandatory provisions of Order 9 Rule 13 of the Code of the Civil Procedure Code.

It is further submitted that, the lower appellate Court has taken a wrong and lenient view on