TEJBAI TEJSHI Vs. GANGUBAI DINANATH ULVEKAR

JUDGEMENT

(1.) THIS appeal was heard on September 25, 2001 when Mr. Walawalkar, Advocate for the appellants requested for time to examine the plea raised by the respondent about the maintainability of the proceedings. Accordingly, this appeal was directed to be listed today-first on board, but it has not been notified. However, both the Counsel appeared and requested the Court to take up the matter since the papers were produced in Court. The matter was thus taken up for hearing by consent when the following Order is passed.

(2.) THIS appeal is directed against the Order passed by Bombay City Civil Court, dated November 27, 1995 in Notice of Motion No. 2685 of 1991 in S. C. Suit No. 7318 of 1988.

(3.) THE said Notice of Motion was filed by the appellants 2 to 5 as third party essentially for recalling the ex parte decree passed by the trial Court dated October 31, 1990. It is not disputed that the said ex parte decree makes specific reference to the provisions of Order 8, Rule 5 of the Code of Civil Procedure Code. Be that as it may, the trial Court has dismissed the subject Notice of Motion essentially on the premise that the appellants being third party had no locus to file the said Notice of Motion purported to be under Order 9, Rule 13 of the Code of Civil Procedure. According to the trial Court, only the defendant in the suit could have invoked the said provision.