Bombay High Court
Uttam Natha Bhalekar vs Vinayak Natha Bhalekar And Others on 3 March, 2021
Bench: V. V. Kankanwadi
38-2021-SA with 1068-2021-CA.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.38 OF 2021
WITH CA/1068/2021 IN SA/38/2021
Uttam s/o Natha Bhalekar ... Appellant
Versus
Vinayak s/o Natha Bhalekar and others ... Respondents
..........
Mr. R. M. Deshmukh, Advocate for appellant.
..........
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 11th February, 2021
Pronounced on : 3rd March, 2021
ORDER :-
. Heard learned Advocate Mr. R. M. Deshmukh for the appellant.
2. The appellant is original defendant No.1 and respondents are
original plaintiffs and defendant No.2. Present respondent Nos.1 and 2
- original plaintiffs filed suit for declaration, partition and separate
possession bearing Regular Civil Suit No.136 of 2017 before learned
Civil Judge Junior Division, Jafrabad, district Jalna. It came to be
decreed on 27.02.2018. In the said case, defendant No.1 had failed to
file written statement within stipulated time and, therefore, the matter
had proceeded without his written statement. Further, original
(1)
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defendant No.2 failed to appear, though properly served and, therefore,
the suit had proceeded ex parte against him. The suit came to be
decreed and each one of the parties was declared to have 1/4th share in
the suit property.
2. Original defendant No.2 filed Regular Civil Appeal No.46 of 2018
before the District Court, Jalna. It was heard by learned District
Judge-4, Jalna and it has been dismissed on 31.01.2020. Hence, present
second appeal.
3. Learned Advocate for the appellant has relied on following
authorities :-
(i) Mahadeo Ramchandra Chikate Vs. Baliram s/o Vithu
Khaire, [2017 (6) Mh.L.J. 313].
(ii) Sarjabai wd/o Narayanrao Manmode Vs. Dhanraj s/o
Pandurang Manmode, [2017 (6) Mh.L.J. 869].
4. At the outset, it can be said that when the appeal was filed by
defendant No.1, he had given his own reasons as to why he could not
file the written statement in time. He intended to raise certain points
regarding properties and wanted to claim that certain suit property is his
self acquired property and, therefore, specific prayer was made for
(2)
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setting aside the judgment and decree passed by the learned Trial Court
and then by setting aside the no written statement order, he be given an
opportunity to contest the suit. In view of this position, it appears that
the learned First Appellate Court has framed a point "whether this Court
can convert an appeal under Section 96(2) of Civil Procedure Code into
a proceeding to set aside ex parte decree and then went on to discuss
and give finding in the negative." Definitely, there appears to be some
substance in the submissions on behalf of the appellant and, therefore,
at this stage, notice is required to be issued to the respondents and in
view of the fact that the respondents would also be heard, the execution
of the impugned decree deserves to be stayed till next date. Hence, the
following order :-
ORDER
I) Issue notice in respect of main appeal as well as the civil
application to the respondents, returnable on 22.03.2021.
II) Till then, there shall be stay in terms of prayer clause 'E' of
the Civil Application No.1068 of 2021 i.e. stay to both the
impugned judgments and decrees of the Lower Courts.
III) Call record and proceedings.
[SMT. VIBHA KANKANWADI, J.]
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