Manish Suryakant Bhatewara vs Ayyaz Mehboob Shaikh
2022 Latest Caselaw 3898 Bom

                       (16)-WP-4189-22.doc.


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          Digitally
          signed by
          BALAJI
                                       CIVIL APPELLATE JURISDICTION
BALAJI    GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL   Date:


                                        WRIT PETITION NO.4189 OF 2022
          2022.04.12
          09:57:06
          +0530




                       Shri. Manish Suryakant Bhatewara                      ..Petitioner
                             Versus
                       Ayyaz Mehboob Shaikh                               ..Respondent

                       Mr. Shrivallabh Panchpor a/w Ankit Dhindale, for the Petitioner.


                                                    CORAM : NITIN W. SAMBRE, J.

DATE : 11th APRIL, 2022

P.C.

1. I am informed that the suit of the present petitioner for declaration of ownership and permanent injunction was decreed on 17th December, 2018, in which an application for correction of decree under Section 152 of the CPC was allowed on 2 nd March, 2020.

2. Taking undue advantage of aforesaid order, it is brought to my notice that defendant No.4 has taken out proceedings under Order IX Rule 13 of the CPC in which prayer of the petitioner under Order VII Rule 11(b) is rejected vide order impugned passed below Exh.16 in MA No.13 of 2021. As such, this petition.

3. My attention is invited to the observations in paragraph 11 of the judgment and decree dated 17 th December, 2018, so as to

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prima-facie demonstrate that the respondent/defendant No.4 has preferred his written statement before the Trial Court before the decree was passed. As such the contentions are, Order IX Rule 13 proceedings ought not to have been entertained as the decree cannot be termed as ex-parte decree under Order IX Rule 6(1)(a) of the CPC. There appears to be substance in the contention of counsel for the petitioner.

4. In view of explanation to Section 141 of the CPC, it is not in dispute that the provisions of Order 7 Rule 11 of the CPC even are applicable to the proceedings initiated under Order IX Rule 13 of the CPC.

5. Hence, issue notice to the respondent, for final disposal, returnable on 14th June, 2022.

6. There shall be stay to the further proceedings until further orders.

                                         [NITIN W. SAMBRE, J.]




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