Judgment 1. Heard Shri Shivan Dessai, the learned Counsel appearing for the petitioners and Shri V. Menezes, the learned Counsel appearing for respondent no.1. 2. At the outset, Shri Shivan Dessai seeks leave to delete the name of respondent no.2 as according to him she was the original defendant to the suit and are not affected by the challenge in the above petition. Hence, the name of respondent no.2 stands deleted at the risk of the petitioners. 3. Rule. Heard forthwith with the consent of the learned Counsel. Shri V. Menezes, the learned Counsel appearing for respondent no.1 waives service. A notice was issued for final disposal of the above petition at the stage of admission. 4. The above petition challenges the order passed by the learned District Judge, Margao dated 21/10/2011 whereby an application filed by the petitioner to hear an application under Order 9 Rule 13 as well as the application for condonation of delay filed by the petitioner in the Civil Suit No.106/96/A were dismissed. 5. Shri Shivan Dessai, the learned Counsel appearing for the petitioners has pointed out that the said suit can be disposed of by an ex-parte decree dated 30/11/2006. The learned Counsel further points out that the respondent no.1 who was the plaintiff in the said suit preferred an appeal challenging part of the said judgment & decree. The learned Counsel further points out that the petitioners have also filed cross-objections in the said appeal. Shri Shivan Dessai, the learned Counsel further pointed out that the petitioners have also filed an application under Order 9, Rule 13 as well as an application for condonation of delay before the learned Judge to set aside the ex-parte decree passed in the said suit. Considering that the said application under Order 9 Rule 13 and the application for condonation of delay is pending, the petitioners filed the said application to request the learned Judge to dispose of the said application in the appeal preferred by the respondent no.1 as the trial Court file was before the learned Appellate Court. The learned Counsel further points out that unless and until his applications under Order 9 Rule 13 and condonation of delay are considered, the question of hearing the appeal does not arise. The learned Counsel further points out that unless and until his applications under Order 9 Rule 13 and condonation of delay are considered, the question of hearing the appeal does not arise. The learned Counsel has taken me through the impugned judgment and points out that the learned Judge has erroneously dismissed the application as it is the contention of the learned Counsel that the learned Judge ought to have first decided the application under Order 9 Rule 13 and the application for condonation of delay before proceeding to decide the appeal. The learned Counsel, as such submits that the impugned order be quashed and set aside. 6. On the other hand, Shri V. Menezes, the learned Counsel appearing for respondent no.1 has pointed out that the petitioners are always at liberty to pursue their remedy in getting their application under Order 9 Rule 13 and application for condonation of delay to be considered by the trial Court. The learned Counsel further points out that instead of requesting the learned Appellate Court to send the records and proceedings to the learned trial Judge to decide the said applications the petitioners sought a remedy which is not available in law. The learned Counsel further pointed out that the proper course would be to direct the learned Judge to send the records and proceedings in Civil Suit No. 106/96 to the concerned trial Court to enable the learned trial Judge to decide the application under Order 9 Rule 13 as well as the application for condonation of delay in accordance with law. The learned Counsel, as such, submits that the petition be accordingly dismissed. 7. Having heard the learned Counsel and on perusal of the record, the prayer in the application filed by the petitioner before the lower Appellate Court to decide the application under Order 9 Rule 13 and the condonation of delay is misplaced. But however, the learned Judge ought to have considered the anxiety of the petitioners to get the application under Order 9 Rule 13 and the application for condonation of delay be decided before proceeding to decide the appeal filed before the lower Appellate Court. But however, the learned Judge ought to have considered the anxiety of the petitioners to get the application under Order 9 Rule 13 and the application for condonation of delay be decided before proceeding to decide the appeal filed before the lower Appellate Court. Taking note of the contentions of Shri V. Menezes, I find it appropriate in the interest of justice that the lower Appellate Court be directed to send the records and proceedings in Civil Suit No.106/1996 to the concerned Court so as to enable the petitioner to pursue the application under Order 9 Rule 13 and the application for condonation of delay in accordance with law. After the disposal of the said application the lower Appellate Court shall proceed to decide the appeal preferred by the respondent no.1 along with cross-objections filed by the petitioners in accordance with law. 8. In view of the above, I pass the following order: ORDER (i) The lower Appellate Court is directed to send the records and proceedings in Civil Suit No.106/1996 to the concerned Court so as to enable the petitioner to pursue the application under Order 9 Rule 13 and the application for condonation of delay in accordance with law. (ii) The trial Judge is directed to decide the said application preferably within three months from the date of the receipt of the records. (iii) The lower Appellate Court is directed to decide the appeal preferred by the respondent no.1 and the cross-objections filed by the petitioners after disposal of the said applications by the learned trial Judge in accordance with law. (iv) Rule is disposed of in the above terms. (v) The petition stands disposed of accordingly with no order s to costs. (vi) Expedite authenticated copy.