Shri. Nitesh @ Nilesh S/O Shivram ... vs Shri. Purushottam S/O. Shankar ...
2022 Latest Caselaw 12410 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

                        WRIT PETITION NO. 7312 OF 2022
  Nitesh @ Nilesh s/o Shivram Gaidhane Vs. Purushottam s/o Shankar Kumbhare &
                                      anr.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders                                Court's or Judge's Orders.
or directions and Registrar's orders.
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                           Mr. S.G. Shukla, Advocate for petitioner.

                                        CORAM          :       VINAY JOSHI, J.

                                        DATE           :       30.11.2022.

                                        Heard.

2. The petitioner was defendant in Special Civil Suit No.809/2009, filed by respondent No.1, for specific performance of contract. The said suit was decreed by judgment and order dated 02.01.2012. In pursuance of that respondent No.1 (DH) has filed execution petition in which a sale- deed has been executed through Officer of Court on 11.07.2014. The judgment of Civil Court was exparte, since the petitioner (defendant) did not appear though summons was served.

3. It is petitioner's case that first time in the month of January-2015, he came across the decree of specific performance, therefore, he has applied to

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the trial Court for setting aside exparte decree in terms of Order 9 Rule 13 of the Code of Civil Procedure, on account of non-service of suit summons. Since, there was a delay of more than three years, petitioner applied for condonation of delay, which was rejected resulting into dismissal of application for setting aside exparte decree.

4. Being aggrieved by rejection of condonation of delay application, petitioner has filed MCA No.213/2019, which was came to be dismissed on 22.08.2022, which is impugned herein.

5. Perusal of available record indicates that the petitioner has twice refused postal service, which has deemed to be due and proper service. The record indicates that on 29.01.2015, the petitioner applied for withdrawal of earnest amount, which was deposited by respondent No.1 in trial Court. Both the Courts below held that the petitioner was fully aware about the decree as well as execution proceeding and therefore, the reason canvassed for condonation was not bonafide.

6. Issue notice, returnable on 13.12.2022.

7. Hamdust allowed.

Signed By:PRITY S GABHANE Reason:

Location:                                                              JUDGE
Signing Date:01.12.2022 18:51


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