1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.486/2008 Pramila Pandurang Golambade Petitioner Vs Tushar Soni Respondent Mr.P.N.Karlekar i/b Vivek Patil ,advocate for the petitioner Mr.S.S.Jain,advocate for the respondent Coram : S.J.Vazifdar,J. Date : 20th November,2008 P.C. 1] Admit. 2] Heard finally. 3] This Civil Revision Application has been filed against the order and judgment of the trial Court dismissing the suit filed by the petitioner under order 39 rule 11 of the Code of Civil Procedure for the breach of an order passed in notice of motion no.2477/2006 which reads as follows. ''1.The ad -interim order till now in force be and is hereby confirmed till the hearing and final disposal of this suit. 2.The plaintiff is directed to either deposit in the court an amount of Rupees Six Lacs or furnish a surety in that amount within a period of three months . 2 3.Liberty reserved for the defendant to move the court for an appropriate action in the event the plaintiff were to fail to comply with Clause (2). 4.The notice of Motion is made absolute in these terms. 5.Cost to abide the cause. 6.The main matter stands adjourned to 17.10.2007 at 11.00 a.m..'' 3] The plaintiff failed to deposit the amount of Rs.6 lacs or furnish surety as directed in the said order. There is no dispute that no appeal was filed against the order. Nor was the order modified. 4] The petitioner contended that she is a widow and did not have funds to comply with the order. She further stated that her son expired in the year 2005 and that the amount taken as a loan from the defendant was lost in the business of her deceased son. 5] Considering the facts and circumstances of the case an order dismissing the suit is too harsh. At the highest the interim protection granted by the said order ought to have been vacated. There does not appear to have been any willful dis- 3 obedience of the order . 6] The learned Judge has passed the order on the basis of a judgment of a learned Single Judge of this Court reported in AIR 1996 Bombay, 69 , Ratnakar D. Patade-appellant Vs. Smita Pandurang Dalvi and others -respondents in which it was held that the provisions of order 39 rule 11 are mandatory. This judgment,however, has been overruled by the judgment of a Division Bench of this Court in the case of Ramavatar Surajmal Modi Vs.Mulchand Surajmal Modi 2004(2) Mah.L.J .P-1 7] In the circumstances the impugned order and judgment is set aside and the suit is restored to the file. C.R.A.is disposed of accordingly. 4