FATRU ALIKHAN KHADAR ALIKHAN LASHKARI THROUGH LRS JULEKHABI FATRU ALI KHAN AND OTHERSversusISHRAT ALIKHAN KHADAR ALIKHAN LASHKARI THROUGH LRS KHAMRAMUNNISA ISHRAT ALI LASHKARI AND OTHERS

2026:BHC-AUG:21379
                                                           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
            ORDER:


            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,
                                            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/-