Gujarat High Court Case Information System
Print
SCA/1125920/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11259 of 2008
=========================================================
NATUBHAI
JHAVERBHAI PATEL - Petitioner(s)
Versus
H
G I FOUNDRIES & 1 - Respondent(s)
=========================================================
Appearance :
MR
MA KHARADI for Petitioner(s) : 1,
None for
Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 10/09/2008
ORAL
ORDER
1. Heard
learned advocate Mr MA Kharadi for the petitioner.
2. The
petitioner has challenged the order dated 30.07.2008 passed by the
learned Principal Senior Civil Judge, Surendranagar. By the said
order, the learned Judge was pleased to allow Civil Misc. Application
No. 15 of 2007 filed by the respondents herein.
3. The
petitioner is the original plaintiff who has instituted Special Civil
Suit No. 24 of 2005. The suit came to be decreed ex-parte. The
respondents herein original defendants, therefore, moved Civil
Misc. Application No. 15 of 2007. Since the petitioner was seeking
execution of the decree, they had also approached this Court by
filing Special Civil Application No. 29711 of 2007 which came to be
disposed of by order dated 28.02.2008 observing that the respondents
have preferred application seeking setting aside of ex-parte decree
which is still pending. Ultimately, the petition was disposed of by
giving certain directions. Pursuant to the said directions, the
learned Judge heard the Civil Misc. Application No. 15 of 2007 and
disposed of it by the impugned order. Delay in seeking setting aside
of ex-parte decree was condoned. Ex-parte decree was recalled.
4. The
learned advocate for the petitioner submitted that Civil Misc.
Application No. 15 of 2007 was only for condonation of delay and no
prayer for setting aside the decree was made. The learned Judge,
therefore, committed grave error in not only condoning the delay but
also allowing the request for setting aside ex-parte decree.
5. Upon
perusal of the application, I find that though the same may not have
been entirely happily worded, the applicants were not only to seek
delay condonation, but also setting aside of ex-parte decree. They
have explained the reasons for non-appearance of the defendant before
the Court that the decree was passed. They also explained delay for
filing the application. Though in the last para of the application
prayer is made only for condonation of delay, in the penalty matter,
a request for setting aside the ex-parte decree was also made. This
request is supported by the averments made in the body of the
application. It would, therefore, be not possible to treat the
application as one only for condonation of delay. In fact that is
how this Court has also viewed the matter by disposing of Special
Civil Application No. 29711 of 2007 by order dated 28.02.2008.
6. When
I find that the learned Judge has considered all the aspects of the
matter and passed the order under challenge, only on this ground, it
would not be possible to exercise writ jurisdiction under Article 227
of the Constitution of India.
7. The
petition is, therefore, dismissed.
(Akil
Kureshi, J.)
mrpandya*
Top