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