Advocates:
['SHELKE SHIVAJI T', 'R/SOEL SERVED', '', 'SHINDE S K']

1 10528.2012 WP

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 10528 OF 2012

Sitabai Rama Gadhave (deceased)

Through L.Rs.

1-A

Kailas Bhanudas Sadaphal,

Age 38 years, Occu. Agri.,

R/o Shahapur, Post Jawalke,

Tq. Kopergaon, Dist. Ahmednagar

1-B

Surekha Vijay Khairnar,

Age 31 years, Occu. Household

& Agri., R/o C/O Vijay Shantaram

Khairnar, Chas (Kasarwadi) Post

Nandur Shingote, Tq. Sinnar,

District Nashik.

.. Petitioners

Versus

Smt. Narmadabai Fakira Gadhave,

Age Major, Occu. Agri.,

R/o Soyegaon, Post Jawalke,

Through her Power of Attorney Holder

Shri Fakira Sakharam Gadhave,

Age Major, Occu. Agri.,

R/o Soyegaon, ost Jawalke,

Tq. Kopergaon, Dist. Ahmednagar.

.. Respondent

Shri S.T. Shelke, Advocate for petitioners

Shri S.K. Shinde, Advocate for respondent sole

2 10528.2012 WP

CORAM : S. V. GANGAPURWALA, J.

DATE : 1

st APRIL, 2013.

ORAL JUDGMENT :

.

Rule. Rule returnable forthwith. With the consent of

parties, taken up for final hearing.

2.

The present respondent has filed suit for specific

performance of contract, the same was decreed. The present

petitioner filed an application for setting aside the exparty decree

along with an application for condonation of delay. The Court

has registered the application for setting aside exparty decree as

Civil Misc. Application No. 15/2011. The application for

condonation of delay was also given the same number. The Trial

Court allowed the application for setting aside exparty decree

subject to costs of Rs. 500/- to the present respondent. The

present petitioner filed an appeal before the District Court,

District Court partly allowed the appeal and remanded the

matter back to the lower Court.

3.

Heard Shri Shelke, learned counsel for the petitioners and

Shri Shinde learned counsel for respondent.

3 10528.2012 WP

4.

Though the learned counsel have tried to canvass their

submissions on merits of the matter. I am not inclined to

consider the same on merits. Allowing an application for setting

aside exparty decree is not appealable at all. Order 43 Rule 1 (d),

provides for an appeal against an order rejecting application

under Order 9 Rule 13 of the Civil Procedure Code, but no appeal

is provided against an order allowing an application under Order

9 Rule 13 of the Civil Procedure Code.

5.

In the light of above, the Appellate Court could have

exercised its jurisdiction. The order passed by the Appellate

Court, as such is without jurisdiction and is set aside on the said

ground itself.

6.

In that view of the matter, the impugned judgment and

order passed by the District Court dated 28/07/2011 in Misc. Civil

Appeal No. 37/2008 is quashed and set aside.

.

Rule is accordingly made absolute in above terms. No

costs.

[ S. V. GANGAPURWALA, J. ]

SDM*/April-13