N. J. JAMADAR, J. DATED : 5 th APRIL, 2023 ORDER:-

1. This appeal is directed against an order dated 17 th December, 2021 passed by the learned Judge, City Civil Court, Boriwali Divison, Mumbai, in Notice of Motion No.1628 of 2018, whereby the said Notice of Motion taken out by the appellants – original defendants to condone the delay of 13 years and 85 days in filing the said Notice of Motion and, thereafter, to set aside the judgment and decree dated 21 st September, 2004 passed against the defendants in SC Suit No.2088 of 2003 came to be dismissed.

2. Johny Alex Goldinho, the predecessor in title of the respondents had instituted a suit against the appellants – defendants seeking a declaration that he had perfected title over two pieces of agricultural land admeasuring 5 Acres comprising of two farm houses bearing Survey No.43, Hissa No.1, situated at village Gorai, Taluka Borivali, Mumbai Suburban District (“the suit property”). It was also prayed that if the defendants were found to be in possession of the farm houses they be ordered to be evicted from the said houses shown in the map in

the Schedule (Exhibit-B to the plaint) (prayer Clause (d)).

3. The defendants, as the record indicates, appeared but did not file the written statement. Eventually by a judgment and order dated 21 st September, 2004 the suit came to be decreed under the provisions of Order VIII Rule 10 of the Code of Civil Procedure, 1908 (“the Code”) in terms of prayer Clause (d) of the plaint.

4. The respondents took out an execution application. In the said execution application, the respondents filed Misc. Application No.23 of 2016 seeking execution of the decree by forcibly dispossessing the defendants with the assistance of the police. Thereupon the defendants filed instant Notice of Motion No.1628 of 2018 seeking condonation of delay of 13 years and 85 days in taking out the Notice of Motion and also to set aside the judgment and decree dated 21 st September. 2004 purportedly passed ex parte.

5. In the affidavit in support of the Notice of Motion diverse grounds were raised; some of them touching upon the merits of the matter. The substance of the case put-forth by the defendants was that the predecessor in title of the defendants was killed on 15 th October, 1998. The defendants were in a disturbed state of mind. They had no source of income. The defendants were unaware of, and could not participate in, the proceedings. Taking undue advantage of the adverse circumstances the plaintiffs obtained ex parte decree. The defendants also contended that the suit summons was not duly served.

6. The Notice of Motion was resisted by the respondents. It was asserted that the suit summons was duly served. The defendants did not participate in the proceedings despite having entered appearance. There was no ground to condone the delay of more than 13 years.

7. By the impugned order, the learned Judge, City Civil Court, was persuaded to reject the Notice of Motion on the ground that it was hopelessly barred by law of limitation. Where the suit summons was duly served the period of limitation to seek setting aside of the ex parte decree was 30 days from the date of decree. There was no ground made out to condone the delay. The Court was also of the view that in the year 2014 itself the defendants were served with the execution application. Again the defendants – judgment debtors failed to enter appearance. Thus, even if the period of limitation is computed from the date of knowledge of the decree sought to be set aside, there was no justifiable reason to condone the delay of more than four years. Resultantly, the Notice of Motion came to be dismissed.

8. Being aggrieved the defendants are in appeal.

9. I have heard Mr. Parab, the learned Counsel for the appellants and Mr.