The main legal point established in the judgment is the importance of fair opportunity to contest the suit and the right to property involved in the suit, along with the simultaneous resort to remedies available to set aside an ex-parte decree and the impact of withdrawal of appeal on the application under Order 9 Rule 13.

JUDGMENT

Nitin B. Suryawanshi, J. - Rule. Rule made returnable forthwith. Heard finally by the consent of the parties.

2. This petition is directed against the order dated 02-11-2015 passed by the learned Joint Civil Judge, Senior Division, Dhule, in Civil Misc. application No.404/2013, thereby allowing the application filed by respondent Nos. 1 and 2, under Order 9 Rule 13 of the Code of Civil Procedure (for short C.P.C.), seeking restoration of Special Civil Suit No.25/2007.

3. The petitioners filed Special Civil Suit No.25/2007 for partition, separate possession of the suit property and for the declaration that transactions of the suit property done by defendant Nos. 1 and 2 (i.e. respondent Nos. 3 and 4 herein) in favour of defendant Nos. 3 and 4 (i.e. respondent Nos. 1 and 2 herein), be declared null and void and not binding upon the petitioners plaintiffs. The suit proceeded ex-parte against all the defendants and was decreed by the judgment dated 19-03-2010.

4. Being aggrieved by the judgment and decree passed by the trial Court, defendant Nos. 3 and 4 on 21-12-2012 preferred Civil appeal No.74/2012 in the District Court, Dhule. During the pendency of the appeal, defendant Nos. 3 and 4 (i.e. respondent Nos. 1 and 2 herein) also filed Civil Misc. application No.299/2012 which was subsequently numbered as Civil Misc. application No.404/2013, under Order 9 Rule 13 of C.P.C. for setting aside ex-parte decree and restoration of the suit. The said application is allowed by the trial Court by imposing cost of Rs.3,000/-. The petitioners are aggrieved by this decision.

5. Heard the learned advocate Mr. M. S. Kulkarni for the petitioners and learned advocate Mr. Devidas Shelke h/f Mr. P. R. Patil for respondent Nos. 1 and 2.

6. The learned advocate for petitioners assailed the impugned order contending that, since the appeal filed by respondent Nos. 1 and 2, challenging the judgment and decree passed in the suit, was pending before the appellate Court, the trial Court was not justified in entertaining the application filed by them under Order 9 Rule 13 of C.P.C. In support of this submission, he relied on Vijay Prabhakar Salunke Vs. Kamini S. Dadarkar, reported in 2001 (2) Mh.L.J. 955. He further submitted that without there being any reasonable cause, though respondent Nos. 1 and 2 belatedly approached the trial Court by filing application under Order 9 Rule 13, however, without giving sufficient reason the said delay was condoned by the trial Court and the reason given while allowing the said application under Order 9 Rule 13 is that, since the delay was already condoned the application is allowed, as no opportunity of hearing was given to the respondents. He further submitted that without withdrawing the appeal, respondents' application for setting aside the ex-parte decree was allowed. The trial Court has erroneously held that since the respondents has filed undertaking that they are going to withdraw the appeal, the application can be allowed. He, therefore, submitted that the impugned order is contrary to the decision in Vijay Prabhakar Salunke (supra) and hence, the same is liable to be quashed and set aside.

7. The learned advocate for respondent Nos. 1 and 2, on the other hand, supported the impugned order by relying on the decision in Kausabai Keshav Dushinge Vs. Revubai Daji Jare and Others, reported in 1996 (3) Bom.C.R. 326. He also relied on the decision in Rani Choudhury Vs. Lt. Col. Suraj Jit Choudhury, reported in 1982 (2) SCC 596. He submitted that it is clear from record that collusive decree is obtained by the petitioners plaintiffs and none of the the respondents defendants had opposed the suit. The respondents being purchaser have interest in the suit properties. In that view of the matter the trial Court was right in allowing the application filed under Order 9 Rule 13 by respondent Nos. 1 and 2. In terms of the undertaking, the respondents have withdrawn the appeal in the month of November, 2015 itself after the