Writ Petition No.14152/2019 :: 1 :: IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.14152 OF 2019 WITH CIVIL APPLICATION NO.9914 OF 2023 Fatru Alikhan s/o Khadar Alikhan Lashkari, Died through L.Rs. Julekhabi w/o Fatru Ali Khan & ors. ….Petitioners VERSUS Ishrat Alikhan s/o Khadar Alikhan Lashkari, Died through L.Rs. Khamramunnisa w/o Ishrat Ali Lashkari & ors. ….Respondents ....... Mr. Y.M. Khan, Advocate for petitioners Mr. M.S. Chaudhary, Advocate for R.No.1/3 to 1/10, 2, 4, 5, 9, 11, 12, 16, 20 21/ to 21/3 ....… CORAM : SIDDHESHWAR S. THOMBRE, J. DATE : 30th APRIL, 2026 O R D E R : 1. Heard learned counsel for the respective parties. 2. The petitioners are aggrieved by the judgment and order dated 31/8/2019, passed by learned Jt. Civil Judge, Junior Division, 2026:BHC-AUG:21379 Writ Petition No.14152/2019 :: 2 :: Ahmedpur, District Latur in Civil Misc. Application No.45/2005, whereby the learned Trial Court allowed the application for setting aside the ex-parte judgment and decree passed in Regular Civil Suit No.141/2002. 3. Mr. Y.M. Khan, learned counsel for the petitioners submits that, the petitioner No.1 filed Regular Civil Suit No.141/2002 for partition and separate possession and perpetual injunction. The suit proceeded ex-pate against original defendants No.1 to 6, 8 to 10, 12 to 17, 19, 21 and 23 to 27 and proceeded without written statement against defendants No.7, 11 and 18. The defendant No.2 admitted the contents of the plaint. Learned Trial Court framed the issues and after recording evidence and hearing the arguments, decreed the suit of the petitioner No.1/ original plaintiff with costs. The respondent No.1 to 6 filed Misc. Civil Application No.45/2005 for setting aside the ex-parte judgment and decree, by contending that the suit summons were not properly served upon them and the plaintiff, in collusion with the bailiff, secured false report about refusal of summons. There was delay of 85 days in filing the above application. Learned Jt. Civil Judge, Writ Petition No.14152/2019 :: 3 :: Junior Division, Ahmedpur allowed the said application and set aside the ex-parte judgment. He further submits that, the order passed by the Civil Court is contrary to the provisions of Order 9 Rule 13 of the Civil Procedure Code and the learned Trial Court failed to consider that the respondents/ original defendants had knowledge about passing of the ex-parte judgment and decree, but they did not file application and there was delay. He submits that, as per Article 123 of the Limitation Act, 1963 application under Order 9 Rule 13 ought to have been filed within a period of 30 days from the date of decree whereas there is delay of 85 days from the date of passing judgment and decree. However, the learned Trial Court failed to consider the same and recorded a finding that from the date of knowledge there was no delay. He submits that, in absence of application under Section 5 of the Limitation Act, 1963 for condonation of delay, the learned Trial Court allowed the application and, therefore, the order which is impugned in this petition is liable to be quashed and set aside. 4. Mr. M.S. Choudhary, learned counsel for the respondents submits that the order passed by the Trial Court is legal and proper. Writ Petition No.14152/2019 :: 4 :: He submits that, in fact it is the contention of the petitioner herein that the petitioner No.1/ original plaintiff has managed the bailiff and obtained such report, but in fact as they were not served, they were not having knowledge of the same and, therefore, from the date of knowledge, the application was filed within limitation and this was rightly considered by the learned Trial Court and allowed the application. He, therefore, prayed to dismiss the Writ Petition. 5. Having heard Learned counsel for both the sides and after going through the reasonings recorded by the learned Trial Court, it is undisputed fact that the petitioner No.1/ original plaintiff has filed the suit for partition against 27 defendants including the respondents herein. Though it was stated that the suit proceeded ex-parte on the basis of report of the service of summons on 16/8/2004, it can be revealed from the record that, the learned Trial Court recorded a finding in paragraph Nos.15, 16 and 17 which needs to be extracted from the order passed by the learned Trial Court. Therefore, I find that, the learned Trial Court has rightly allowed the application. Considering the above findings, I do not find that the learned Trial Court has recorded a perverse Writ Petition No.14152/2019 :: 5 :: finding. As such, no case is made out for interference in the impugned order. Hence, the Writ Petition is devoid of merits. The same is dismissed. No order as to costs. In view of dismissal of the Writ Petition, Civil Application No.9914/2023 stands disposed of. (SIDDHESHWAR S. THOMBRE, J.) fmp/-