LAL MOHAMMED MESTRY Vs. ABDUL SAKUR ABDUL GAFOOR

JUDGEMENT

(1.) HEARD the Advocates for the parties. Perused the records. Rule. By consent, rule is made returnable forthwith.

(2.) THE lower Appellate Court by the impugned order has set aside the order passed by the trial Court rejecting the application under Order 9, Rule 13 of Civil Procedure Code. It has been clearly observed by the lower Appellate Court that there was no proper service of summons upon the respondents in the suit and that there is no material on record to hold that the Respondents were aware of the decree passed against him much prior to December 1996. Undisputedly, the application was filed in January 1997. The impugned order is sought to be challenged on the sole ground that the decree having been passed under Order 8, Rule 5 of C.P.C., considering the law laid down by this Court in Laxman Zingraji Adhau Vs. Sushila Zinguji Thakre reported in 1996 (1) Mh.L.J . 67 , there was no scope for interference in the order of the trial Court and/or allowing the application under Order 9 Rule 13 of C.P.C.

(3.) THE trial Court dismissed the application on two counts. Firstly, that the same was beyond the period of limitation and secondly that the summons in the suit was properly served upon the respondent. Both the findings of the trial Courts have been set aside by the lower appellate Court in the impugned order.