Bombay High Court
Karbhari Laxman Nagargoje vs Ankush Bhanudas Nagargoje And Ors on 14 January, 2026
2026:BHC-AUG:1656
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 01 OF 2011
WITH
CIVIL APPLICATION NO. 14112 OF 2016
Karbhari Laxman Nagargoje .. Applicant
Versus
Ankush Bhanudas Nagargoje and others .. Respondents
Shri H. V. Tungar, Advocate for the Applicant.
Shri Aditya N. Sikchi, Advocate for the Respondent Nos. 1A to
1C.
WITH
SECOND APPEAL NO. 451 OF 2010
WITH
CIVIL APPLICATION NO. 9116 OF 2010
CORAM : SHAILESH P. BRAHME, J.
DATE : 14TH JANUARY, 2026.
FINAL ORDER :
. Heard both sides.
2. The civil revision application is directed against order dated 06.09.2010 passed in Misc. Civil Application No. 100 of 2006 condoning the delay of 11 years and 03 months and simultaneously setting aside ex-parte decree passed in R.C.S. No. 426 of 1985. Applicant is original plaintiff. The respondents are the original defendants.
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3. R.C.S. No. 426 of 1985 was filed for partition, perpetual and mandatory injunction by the applicant. It was recorded that summons was served upon the defendant No. 11. The suit proceeded ex-parte against him. It was partly decreed on 13.01.1995 non suiting the plaintiff for the relief of partition, but granting relief of perpetual injunction. Being aggrieved, the defendant Nos. 1, 4 to 12 had preferred R.C.A. No. 31 of 1995. It was dismissed on 15.09.2009 against that Second Appeal No. 451 of 2010 is preferred, which is pending in the High Court.
4. The respondent No. 1 filed Mis. Civil Application No. 100 of 2006 seeking condonation of delay of 11 years 03 months for setting aside ex-parte decree with a separate application to set aside ex-parte decree passed in R.C.S. No. 426 of 1985. Application was contested by the applicant. By the impugned order application for condonation of delay was allowed. The ex- parte decree was also set aside upholding the contention of the respondents.
5. By my last order two issues were framed which are as follows :
(i) Whether application for condonation of delay caused in seeking setting aside of ex-parte decree can be dealt with merits of the matter simultaniously ?
(ii) Whether learned Judge is justified in passing the impugned order compositely i.e. condonation of delay and merits of the matter ?
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6. Learned counsel Mr. Tungar appearing for the applicant submits that Trial Court has committed grave error of jurisdiction in deciding application for condonation of delay and merits of the grounds for setting aside ex-parte decree. It is submitted that impugned order setting aside ex-parte decree is without jurisdiction. It is further submitted that the decree is perverse. It is further submitted that there was valid service upon the defendant No. 11 and report to that effect was submitted. My attention is also adverted to the R.C.S. No. 148 of 2001 to show that defendant No. 11 was joint with his father and other family members.
7. Per contra, Mr. Aditya Sikchi, learned counsel appearing for the respondents submits that considering peculiar facts and circumstances composite application is permissible. The explanation for condonation of delay cannot be segregated from the grounds for setting aside ex-parte decree. It is submitted that his client was in Armed Forces and not available for the service. There was non compliance of Order V Rule 15 of the C. P. C. It is further contended that defendant No. 11 was even not aware of R.C.A. No. 31 of 1995. It is further urged that the findings recorded for condonation of delay could not be disturbed and matter be relegated to the Trial Court for deciding application for setting aside ex-parte decree. Reliance is placed on the judgment of the Supreme Court in the matter of C. Prabhakar Rao and others Vs. Sama Mahipal Reddy and others reported in (2025) 9 SCC 716.
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8. Impugned order reflects that the grounds for condonation of delay as well as merits of application for setting aside ex-parte decree are commonly considered and order is composite one. Misc. Civil Application No. 100 of 2006 was specifically filed for condonation of delay of 11 years and 03 months and a separate application was filed for setting aside ex-parte decree. The record does not show that the parties had given consent for deciding both applications by composite order. It is not a case that a composite application was made for setting aside ex-parte decree and condonation of delay. Unless delay is condoned, the concern Court does not get jurisdiction to decide the matter on merits. For that proposition judgment of the Supreme Court in the matter of State of Gujrat Vs. Saved Mohd. Baquir El Edross reported in LAWS (SC) 1981 9 1 is cited by the applicant. Present case is squarely covered by the judgment. The composite decision is impermissible.
9. Both learned counsels though advanced submissions in respect of the validity of the service of summons on the defendant No. 11, but this Court will not go into that aspect of the matter that is to be decided by the Trial Court independently.
10. Learned counsel Mr. Sikchi has taken me through judgment rendered by the Supreme Court in the matter of Dwarika Prasad (D) through L.Rs. Vs. Prithvi Raj Singh reported in 2024 (15) SCALE 897. In that case appellant before the Supreme Court was original defendant, who had not preferred any separate 5 13 cra 01.11 application for condonation of delay while setting aside ex-parte decree. His application was rejected by the Trial Court and order is confirmed by the High Court. I have gone through para Nos. 9 to 11 of the judgment. If the composite application is made, it is permissible to deal with the application and there is no requirement of filing separate applications. The ratio laid down therein cannot be made applicable to the present case. The case at hand is distinguishable.
11. Further reliance is placed on the judgment of the Supreme Court in the matter of C. Prabhakar Rao and others Vs. Sama Mahipal Reddy and others (supra) to buttress that the observations and the order setting aside ex-parte decree be expunged and the matter be relegated to the Appellate Court for deciding afresh without disturbing the order condoning the delay. I have gone through relevant paragraph Nos. 11, 14 and 15 of the judgment. The facts are distinguishable from the facts of the case at hand. I am of the considered view in the present matter that the Trial Court halfheartedly dealt with the application for condonation of delay. There is huge delay. The cited judgment will not enure to the benefit of the respondents.
12. For the foregoing reasons, I find that interference in the impugned order is necessary. Impugned judgment and order dated 06.09.2010 passed by the 03 rd Joint Civil Judge Junior Division, Beed in M. C. A. No. 100 of 2006 is quashed and set aside and M. C. A. No. 100 of 2006 is relegated to the Trial Court 6 13 cra 01.11 for deciding afresh on its own merits.
13. It is made clear that application for setting aside ex-parte decree shall be dealt with subject to decision of Misc. Civil Application No. 100 of 2006. There shall be no order as to costs.
14. Parties shall appear before the Trial Court on 02.02.2026.
15. In view of disposal of C. R. A. No. 01 of 2011, nothing survives in the Civil Application No. 14112 of 2016. Same stands disposed of.
16. Second Appeal No. 451 of 2010 stands segregated from the appeal from order and same shall be dealt with independently.
[ SHAILESH P. BRAHME J. ] bsb/Jan. 26