- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) No. 826 OF 2009 WITH NOTICE OF MOTION No. 26 OF 2010 IN NOTICE OF MOTION No. 2851 OF 2008 IN SUMMARY SUIT No. 1729 OF 2005 Vishwas Kisan Zende & Anr. .. Applicants Vs. Danjibhai N. Babaria ..Respondent Mr. M. C. Dixit, for the Applicants. Mr. Ramesh Jain, for the Respondent CORAM : D. K DESHMUKH AND Smt. R. P. SONDURBALDOTA , JJ DATED : JUNE 15, 2010. P.C. : 1. Admit. 2. Heard finally by consent of parties. Appeal is disposed of in following terms- (i) On the appellants depositing an amount of Rs. one lakh in this - 2 - Court, within a period of 4 weeks, with due intimation to the respondent/plaintiff, the exparte decree dated 6th November, 2006 passed against the appellants/defendants in Summary Suit No. 1729 of 2005, and also the order dated 4th November 2009 passed in Notice of Motion No. 2851 of 2008, shall stand set aside. (ii) In that event, the respondent/plaintiff may, if so advised, shall take out a Summons for Judgment within a period of four weeks from the deposit of the amount. The service of said Summons for Judgment shall be effected on the advocate of the appellant herein, which service shall be held to be a good service. Thereafter, the Summons for Judgment shall be decided, in accordance with law by the learned Single Judge. The learned Single Judge while disposing of the said Summons for Judgment shall make an order about disposal of the amount of Rs. one lakh, which is being deposited by the appellants, pursuant to this order. (iii) In case the amount is deposited, the Prothonotary & Senior Master shall permit the respondent/plaintiff to withdraw the amount on furnishing the bank guarantee of any nationalized bank, to the satisfaction of the Prothonotary on filing an undertaking to bring back the amount, if so directed by this Court, and on such terms - 3 - and conditions, directed by this Court. (iv) In case the amount, as aforesaid, is not deposited, the appeal shall stand dismissed, and the plaintiff shall be fee to execute the decree. Sd/- Sd/- [Smt. R. P. SONDURBALDOTA , J.] [D. K DESHMUKH , J.]