The original plaintiffs challenge the order of the appellate court, whereby he allowed the application for condonation of delay, instituted by Gangaben, respondent-original defendant, which was barred by about eight months. The story of the matter is that the petitioners instituted suit for eviction on several grounds against Gangaben. She was served and made some appearance in court, but thereafter, did not remain present. An ex parte decree was passed on 30th December, 1995, under which Gangaben was required to hand over the premises under occupation by 31st of March, 1996. The applicant took out execution proceedings on 9th of April, 1996. Gangaben was served notice in execution on 11th of April, 1996, which was returnable on 30th of April, 1996. At the instance of Gangaben, execution proceedings were adjourned on two occasions. Nevertheless, she instituted an appeal, some time in September, 1996 before the District Court, Kheda at Nadiad and took out an application for condonation of delay. The learned IVth Extra Assistant Judge, Nadiad, allowed the application for condonation of delay, by an observation that respondent Gangaben is a poor, illiterate lady and in the interest of justice, relief is required to be given to her. The result of allowing the application for condonation of delay is that the appeal will be heard by the learned IVth Extra Assistant Judge on its merits and the petitioners take an umbrage to the order of the learned Appellate Judge dated 30th October, 1996, allowing the application for condonation of delay. Mr.Soni, learned counsel for the petitioners, very vehemently urged that, in the first place, no case was made out by respondent Gangaben for condoning the delay. According to him, on the contrary, Gangaben made a false statement in her Application for condonation of delay and even suppressed material facts. He also pointed out that when execution proceedings were filed in April, 1996, yet no attempt was made to get the ex parte decree set aside under Order 9 Rule 13 and yet, two times adjournments were sought in execution proceedings. From the story of the matter, it did indeed appear that the respondent Gangaben was not advised properly. The finding of the learned appellate Judge is that she is a poor and illiterate person and when the learned appellate Judge says that he has passed the order in the interest of justice, I do not think that this type of order should excite my jurisdiction to interfere under Section 115 of the Code of Civil Procedure, 1908. Mr.Soni asserts that several documents were produced by the applicant, opposing the condonation of delay and they are overlooked and no reference is made. Even on the assumption that the learned appellate Judge has committed material irregularity either touching the jurisdiction or not touching the same, having regard to the fact that a view has been taken in the interest of justice by the appellate court, no interference is justified. Hence, rejected.
20th December, 1996( G.D. Kamat, C.J. ) ***** (apj)