JUDGMENT :

1. This appeal is directed against an order dated 9 November 2022 passed by the learned Judge, City Civil Court in Notice of Motion No.931 of 2021 in S.C.Suit No.3513 of 2010, whereby the said Notice of Motion taken out by the Appellant-original Defendant No.1(d) for setting aside the decree under the provisions of Order IX Rule 13 of the Code of Civil Procedure, 1908 came to be dismissed.

2. The background facts can be stated, in brief, as under :

2.1 For the sake of convenience, the parties are hereinafter referred to in the capacity in which they were arrayed before the trial Court. Suit No.3513 of 2010 was instituted for partition and separate possession of land admeasuring 359.4 sq. mtrs. out of CTS No.262, Sahar Village, Andheri (E), Mumbai (suit plot). The original Plaintiff – deceased Respondent No.1 claimed to be the only daughter of late Joseph D’Souza.

The Plaintiff asserted that late Joseph and his brother Philip D’Souza were the holders of the ancestral properties including the suit plot. Both Joseph and Philip passed away. The Defendants were the successors in interest of late Philip D’Souza. Joseph had ½ share in the suit plot. Defendant Nos.1 to 4 started to carry out extensive alterations in the suit plot without obtaining permission from the planning authority. Initially, the Plaintiff had instituted Suit No.627 of 2008 to restrain the Defendants from developing the suit plot. Later on, as the Defendants declined to give Plaintiff’s ½ share in the suit plot, the Plaintiff was constrained to institute a suit for declaration and partition of the suit plot by metes and bounds.

2.2 Defendant Nos.1 and 3 resisted the suit by filing written statement. It was contended, inter alia, that the Plaintiff had sold the joint family property situated at Survey No.27, Hissa No.6, CTS No.199 admeasuring 675 sq. mtrs., and appropriated the entire consideration and that the father of the Plaintiff had sold an area admeasuring 166 sq.mtrs. out of the plot CTS No.262 which fell to his share and, therefore, the Plaintiff’s claim of ½ share in the suit plot, was untenable. By a separate written statement, Defendant Nos.2, 4 to 6 and 8 also resisted the suit by raising identical grounds of defence.

2.3 It seems that after the issues were framed, the Defendants did not participate in the trial. Eventually, the suit came to be decreed by judgment and order dated 15 June 2008 holding that the Plaintiff has 50% share in the suit plot and she was entitled to partition and separate possession of the said share. A preliminary decree was ordered to be drawn up.

2.4 The Plaintiff filed an Execution Application, being Application No.128 of 2019. It seems, upon being served with the notice of the execution application, the Appellant-Defendant No.1(d) took out a Notice of Motion No.931 of 2021 to set aside the decree.

2.5 The substance of the Notice of Motion was that initially the Advocate, who was appointed by the Defendants, kept them apprised of the proceedings in the suit and sought instructions. The Defendants bona fide believed that the Advocate would diligently pursue the matter and protect their interest. However, slowly and gradually the Advocate refused to take their calls. They became aware of the passing of the decree only when Defendant No.4 was served with the notice of the execution application on 27 November 2019. Hence, the application for setting aside the decree, under Order IX Rule 13 of the Code, 1908.

2.6 The Notice of Motion was resisted by the Plaintiff contending, inter alia, that the Defendants were making wild allegations against their Advocate mala fide. They were not diligent in defending the suit. There was no explanation for the huge delay in filing the application for setting aside the decree even after one of the Defendants was served with the notice of the execution application. The Plaintiff, thus, asserted that the Defendants have not made out a sufficient cause for condonation of delay, nor there was any