1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 317 OF 1994 i. Babu s/o. Deorao Chikundre Died through his L.Rs. i(i) Kishor Baburao Chikundre, R/o. Makani, Tq. Omerga At present Tq. Lahora, Dist. Osmanabad. i(ii) Anil s/o. Baburao Chikundre, R/o. As above. ....Appellants. Versus 1. Thakubai w/o. Madhav Korde, R/o. Makani, Tq. Omerga, Dist. Osmanabad. 2. Shriniwas s/o. Babu Chikundre, Minor, U/g. of Maroti s/o. Tukaram Rasal, R/o. Lahora (k), Tq. Omerga, Dist. Osmanabad. ....Respondents. Shri. V.G. Mete, Advocate for the appellant. Shri. R.G. Bhadekar, Advocate for the respondents 1. CORAM : R.K. DESHPANDE, JJ. DATE : 5th October, 2009 ORAL JUDGMENT : 1. Heard Shri. Mete, the learned counsel for the appellants and Shri. Bhadekar, the learned counsel for the respondent No. 1. 2. This second appeal has been preferred by the original defendant 2 No. 1, challenging the judgment and decree passed on 29.9.1984 by the learned Civil Judge, Junior Division, Umerga in Regular Civil Suit No. 70/1980, granting specific performance of contract. The appellant/original defendant is directed by the said decree that he shall execute the registered sale deed in respect of the suit land as mentioned in para 6-A of the plaint in favour of the plaintiff within a period of one month from today by accepting Rs.3,000/- with their own costs. It has further been directed that if the defendants failed to execute the sale deed, then the plaintiff shall deposit Rs. 3,000/- in this Court and she will be entitled to get the sale deed executed through the Court. This decree has been confirmed in appeal in Regular Civil Appeal No. 69/1985 filed by the appellant/original defendant. 3. At the time of admission of this appeal, following substantial question of law was framed. "The effect of the finding in respect of Issue no. 3-A in Regular Civil Suit No. 146/1976 on the present litigation involves substantial question of law." Thus, the substantial question of law is that whether the findings on issue No. 3-A recorded in Regular Civil Suit No. 146/1976 between the same parties, operates as res-judicata in the present civil suit. The issue No. 3-A, framed in the Regular Civil Suit No. 146/1976, was as under :- "Do the defendants prove that the plaintiff agreed to reconvey the suit land to defendant No. 1 on returning of Rs.3,000/- within a period of five 3 years ?" Issue No. 3-B states that, "If it is proved, what is its effect ?" Thus, these two issues were answered in the negative in Regular Civil Suit No. 146/1976 which is in favour of defendant and according to the learned counsel for appellant, the said findings, operate as res-judicata in the present suit. According to him, the trial Court as well as the appellate Court could not have granted the decree for specific performance of contract on the basis of agreement of reconveyance, which was the subject matter in Regular Civil Suit No. 146/1976. 4. With the assistance of both the learned counsels appearing for the parties, I have gone through the judgments delivered by both the Courts below. The trial Court framed issue No. 4 in respect of res-judicata, which is reproduced as under :- "Does the issue decided in Regular Civil Suit No. 146/1976 operates as res-judicata ?" It is answered in negative. It cannot be disputed that the issue of res-judicata is mixed question of facts and law. The trial Court has dealt with this issue in paragraph No. 14, as under :- "Here in this case, the matter directly and substantially in issue in the present case was not directly and substantially in issue in the former suit because present suit is for specific performance of contract and in this case, the plaintiff has to prove whether the deft. No. 1 has executed an agreement 4 of recoveyance in her favour and in the former suit, the question was only to decide whether then plaintiff the present deft. No. 1 was in possession of the suit property. Thus, though issue no. 3-A was framed in the former suit, but I am of the view that the issue was un-necessarily framed because the agreement between the plaintiff and deft. was for a period of 5 years i.e. by the end of 1976. The said suit was filed in the year 1976 and deft . The present plaintiff had filed her w.s. in the year 1977 i.e. before expiration of the stipulated period in the agreement. Therefore, the said issue was pre-matured as far as the facts of the R.C.S.No. 146/1976 are concerned, Hence, in this case, the issue in R.C.S.No. 146/76 will not operate as a res-judicata." 5. The appellate Court has framed the points for determination, which include point No. 3, as under :- "Whether the suit is hit by the principle of res-judicata ?" The appellate Court has recorded finding on this point as under :- "21. If the above observations in the referred case are applied to the facts of the present suit, it is clear that at the time of previous suit, claim of the present plaintiff was not matured because admittedly the previous suit was filed in the year 1976. As per the agreement between the parties, the plaintiff was entitled for recoveyance of the property 5 years after the execution of the agreement. The agreement was executed in the year 1973. Thus the 5 years time means it was to be reconveyed after Gudipadva in the year 1978. The W.S. was filed by present plaintiff in the previous suit in the year 1977. Therefore, it is clear that the claim of the present plaintiff if would have been made in the previous suit it would have been made in the previous suit it would have been prematured and plaintiff was not entitled to get any relief in this context in the previous suit and therefore, as per the above observations of Their Lordship of Supreme Court, this issue will not operate as resjudicata to the 5 present suit. Hence, I answer point No. 3 accordingly." 6. In view of the aforesaid findings recorded by both the Courts below, the issue of res-judicata is answered in the negative and in my opinion, no substantial question of law arises in the present case. There is no substance in the second appeal. The same, is therefore, dismissed without any order as to costs. 7. At this stage, the learned counsel for the appellant prays for grant of leave to appeal to the Supreme Court. I have heard the learned counsel for the parties. After going through the judgments of both the Courts below, it is apparent that the issue regarding the resjudicata, which involves the findings on facts, has been answered in the negative. Therefore, I do not find any ground to grant leave to appeal. Hence, the said prayer is rejected. 8. Shri. Mete, the learned counsel for the appellant, states that this Court had granted interim relief on 19.9.1994 which was continued till pending the decision of the instant appeal by separate order dated 14th of November 2006. The learned counsel, therefore, makes oral prayer for continuation of earlier order for the period of eight weeks. I have heard both the learned counsels on the question of grant of stay. Shri. Bhadekar, the learned counsel, opposes the request on the ground that the plaintiff has already deposited an amount of Rs.3,000/- long back on 6 15.10.1984, he has not filed any proceedings for future mesne profit, he did not claim any future mesne profits. He further argues that the plaintiff has been wrongly deprived of the fruits of the decree for such a long period and therefore, there is no reason to continue interim order for the period of two months from today, as has been sought by the learned counsel for the appellant. 9. The interim order passed by this Court has been operating since 1994 and in my opinion, it would not cause any prejudice to the respondent/original plaintiff, if the said interim order is continued for the further period of eight weeks from today. In view of this the interim order granted on 06.9.1994 shall stand continued for the period of 8 weeks from today, after expiry of which the same shall stand automatically vacated. [ R.K. DESHPANDE, J. ] ssc/fa317.94