Dismissed

Sharif Hasan Abdul Rauf v. the Municipal Corporation of Greater Mumbai

Bombay HC12 Aug 2011AO/756/2011

Case brief

AI extract

What is this about?

The High Court dismissed an appeal challenging a lower court's summary rejection of a Notice of Motion to set aside an ex parte decree due to delay. The court found the lower court correctly rejected the motion absent a separate application for condonation of delay under section 5 of the Limitation Act. However, granting liberty to the appellant to file a fresh application for condonation of delay

What did the court decide?

Liberty granted to the Appellant to take out a fresh notice of motion with an application for condonation of delay under section 5 of the Limitation Act.

Sharif Hasan Abdul Rauf Vs the Municipal Corporation… — Execution and Attachment | Bombay HC (2011)

ao720.ca971

rng

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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 APPEAL FROM ORDER NO.720 OF 2011

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 with CIVIL APPLICATION NO.971 OF 2011

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Anwar ul Haque Hasan Raja .. Appellant

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vs

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1.The Municipal Corpn of Gr.Mumbai.. Respondents

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& anr

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Mr.M.V.Holmagi for the Appellant

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Ms.K.K.Soran for Respondent No.1

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Ms.Savina Bangera i.b Mr.A.R.Mishra for

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Respondent No.2

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CORAM: J.H.BHATIA, J

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P.C.

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1. Heard learned counsel for the parties.

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2. The Appeal is preferred by the original

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Defendant against the Notice of motion taken out

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by him on 7th May,2011 for setting aside the

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ao720.ca971

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decree passed on 26th August,2010 in Suit no.
5474 of 2004 filed by the Respondent No.2 for
certain reliefs. It was an ex parte decree and
he had taken out Notice of motion for setting
aside the decree beyond the period of 30 days
prescribed under the Limitation Act. The learned
Judge of the City Civil Court rejected that
Notice of motion summarily on the ground that no
Application was filed under section 5 of the
Limitation Act for condonation of delay in
filing the Application under Order 9 Rule 13 of
the Code of Civil Procedure. That order is
challenged in the present Appeal.

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2. Admittedly, the decree was passed in the Suit
on 26th August,2010 and Application for setting
aside the said decree was filed in the form of
Notice of motion on 7th May,2011 which was
beyond the period of limitation of 30 days.

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3. Chapter 19 of the Civil Manual consists of
paragraph 337, 338 and 339 clearly prescribes

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ao720.ca971

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that Application for proceeding under section 5
of the Limitation Act has to be filed and to be
registered in a particular proforma. As there
was no Application for condonation of delay
under section 5 of the Limitation Act the
learned Judge rightly pointed out the procedure
prescribed in Chapter 19 of the Civil manual and
as there was no such Application he rejected the
Notice of motion summarily. No fault can be
found with the impugned order.

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4. At this stage, learned counsel for Defendant
No.2-Appellant seeks liberty to take out fresh
Notice of motion with Application under section
5 of the Limitation Act for condonation of
delay. In my opinion, in the interest of justice
such liberty should be given.

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5. Therefore, while the Appeal is dismissed,
liberty is granted to the Appellant to take out
fresh notice of motion with an application for
condonation of delay under section 5 of the

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ao720.ca971

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Limitation Act.

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6. As the appeal itself is disposed of, Civil
Application does not survive and is disposed of
accordingly.

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J.H.BHATIA, J

Sharif Hasan Abdul Rauf v. the Municipal Corporation of Greater Mumbai

Case brief

What is this about?

What did the court decide?

Sharif Hasan Abdul Rauf v. the Municipal Corporation of Greater Mumbai

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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