Laxman Genba Bondre vs Sunil Shankar Patil (Gujar) And ...
2022 Latest Caselaw 12249 Bom

                       (3)-AO-181-19.doc.


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION

                                     APPEAL FROM ORDER NO. 181 OF 2019
          Digitally
          signed by
          BALAJI
                                                    WITH
BALAJI    GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL   Date:
                                      CIVIL APPLICATION NO. 217 OF 2019
          2022.11.29
          10:31:05
          +0530

                       Laxman Genba Bondre                             ..Appellant/Applicant.
                             Versus
                       Sunil Shankar Patil (Gujar) & Ors.              ..Respondents

                       Mr. Abhijit B. Kadam, for the Appellant/Applicant.
                       None for the Respondents.

                                                 CORAM : NITIN W. SAMBRE, J.

DATE : 28th NOVEMBER, 2022

P.C.

1. This Appeal from Order is by the plaintiff to Special Civil Suit No.6 of 2013 which was ex-parte decreed on 17 th September, 2016. The decree is for specific performance.

2. Feeling aggrieved, defendant No.2 preferred Regular Civil Appeal No.30 of 2017 which was allowed vide order dated 9 th August, 2018 thereby remanding the matter back to the Trial Court, as the said defendant No.2 was able to establish that he was not served with the suit summons.

3. While questioning the said order of remand, counsel for the appellant/plaintiff would urge that the scope of first appeal

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under Section 96 of the CPC is restricted to the extent of appreciation of the merits in the ex-parte decree and not the effect of the non-service of suit summons on the defendant. So as to substantiate his contentions, he has drawn support from the judgment of this Court in the matter of Shobha Suresh Kurekar Vs. Mohan Suresh Kurekar reported in (2017) 3 Mh.L.J. 334, particularly paragraphs 9, 10 and 11. As such, according to him, the Appellate Court has committed an error in law in exercising powers under Section 96(2) of the CPC thereby ordering remand on the ground that the defendant No.2 was not properly served with the suit summons.

4. None for the respondents.

5. As prayed, post this matter for final disposal on 5th December, 2022, as a last chance.

6. Counsel for the appellant assures that the copy of the present order along with the notice shall be served on the counsel for the other side before the said date.

7. Ad-interim relief to continue till then.

                                           [NITIN W. SAMBRE, J.]



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