AHMAD I SHAIKH Vs. MANUEL FRANCISCO D COSTA

JUDGEMENT

(1.) HEARD Shri Shivan Dessai, the learned Counsel appearing for the petitioners and Shri V. Menezes, the learned Counsel appearing for respondent no.1.

(2.) AT the outset, Shri Shivan Dessai seeks leave to delete the name of respondent no.2 as according to him she was the original defendant to the suit and are not affected by the challenge in the above petition. Hence, the name of respondent no.2 stands deleted at the risk of the petitioners.

(3.) SHRI Shivan Dessai, the learned Counsel appearing for the petitioners has pointed out that the said suit can be disposed of by an ex-parte decree dated 30/11/2006. The learned Counsel further points out that the respondent no.1 who was the plaintiff in the said suit preferred an appeal challenging part of the said judgment & decree. The learned Counsel further points out that the petitioners have also filed cross-objections in the said appeal. SHRI Shivan Dessai, the learned Counsel further pointed out that the petitioners have also filed an application under Order 9, Rule 13 as well as an application for condonation of delay before the learned Judge to set aside the ex-parte decree passed in the said suit. Considering that the said application under Order 9 Rule 13 and the application for condonation of delay is pending, the petitioners filed the said application to request the learned Judge to dispose of the said application in the appeal preferred by the respondent no.1 as the trial Court file was before the learned Appellate Court. The learned Counsel further points out that unless and until his applications under Order 9 Rule 13 and condonation of delay are considered, the question of hearing the appeal does not arise. The learned Counsel has taken me through the impugned judgment and points out that the learned Judge has erroneously dismissed the application as it is the contention of the learned Counsel that the learned Judge ought to have first decided the application under Order 9 Rule 13 and the application for condonation of delay before proceeding to decide the appeal. The learned Counsel, as such submits that the impugned order be quashed and set aside.