JUDGMENT

G.S. Patel, J -Not on board. By consent, the Notice of Motion is taken up for hearing and final disposal.

2. The Notice of Motion as currently framed is thoroughly misconceived. It says that there is an ex parte order of SJ Vazifdar J (as he then was) of 7th October 2003, a copy of which is at page 33. This is said to be "ex parte". It is argued that it is required to be set aside because there was no Notice of Motion filed for a judgment for want of written statement. The argument is misconceived and overlooks Rule 89 of the Bombay High Court (Original Side) Rules.

I have already dealt with this aspect of the Rules in a recent judgment in Placido Thomas Aguiar v Elizabeth Lucy D''Souza & Ors. [1]

3. The next argument raised is that the order is to be set aside because the writ of summons was never served. The appearance in that order shows that an Advocate was engaged for all the Defendants. That the Advocate was engaged is actually not disputed. Defendant No. 1 today urges that the vakalatnama in favour of that Advocate was executed by a person who claimed to be entitled to do so on the basis of a Power of Attorney. This person, one Mr K Shrinivas Rao, was, Defendant No.