1 rev9072-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION rpa REVIEW PETITION STAMP NO. 9072 OF 2010 IN WRIT PETITION NO. 3301 OF 1994 Chandamal Kundanlal Jain Since deceeased through his LR's .. Applicants/ Bharatkumar Jain & Anr. Petitioners V/s. Kashinath Krushnaji Jadhav Since deceased through his LR's .. Respondent Kishore Kashinath Jadhav .... Mr. P. M. Pradhan for the applicants. Mr. P. M. Karlekar for the respondent. .... CORAM : A. S. OKA, J. DATE : JANUARY 21, 2011. P.C. Review is sought of the Judgment and order dated 14th January, 2010, passed by this Court in a Writ Petition. The learned counsel appearing for the Petitioners invited attention of this Court to the averments made in paragraph Nos. 4 and 5 of the Review Petition. The learned counsel appearing for the Review Petitioners pointed out the averments made even in the application for condonation of delay. The submission is that the 2 rev9072-10 decree of the trial Court which has been restored by this Court in writ petition is not capable being executed. The other submission is that incorrect statements were made without instructions by the advocate for Review Petitioners who appeared on the date when the writ petition was fixed for Judgment. It is contended that hardship will be caused to the Review Petitioners if the decree passed by this Court is executed. The learned counsel invited attention of this Court to the affidavit dated 17th January, 2011 filed by the Petitioner No. 1(A) for himself and on behalf of the Petitioner No.1(B). In paragraph Nos. 2 and 3 of the said affidavit, the Petitioner No. 1(A) has stated thus : “2. I say that, I also offered the premises admeasuring 6.5. feet by 13 feet in the Bazar Area in Pen, which is 40 feet away from my shop. I further say that, I undertake to make available to said Kishore, Shop No.5, in Om Shri Krupa Co-Operative Society, which ademasures 6.6 feet by 12 feet on the ownership basis, without making him pay any consideration as the same would be borne by me. As of today, the said shop stand in the name of Mrs. Poonam Dipak Jain, resident of Dev Ali, Pen, who is my relation. I say that, document would regular document of transfer in favour of the said Kishore or any of his relative that he would nominate. I further say that, the said shop is vacant an is ready for occupation. However, I say that, either the said Kishore or any of his nominee would be required to complete the formalities for being a member of the society. 3 rev9072-10 3. I again undertake to this Hon'ble Court that, I shall give possession within a week, of the said shop from passing of an order to that effect by this Hon'ble Court. 2. The learned counsel appearing for the Respondents (Petitioners in the writ petition) submitted that there is no ground for review and the Respondents are not willing to accept the accommodation offered by the Petitioners as set out in the aforesaid affidavit. The learned counsel for the Respondents also states that application for execution of the decree filed by the Respondents is pending. 3. The averments made in the Review Petition are basically as regards the executability of the decree of the trial Court which has been restored by this Court and as regards hardship which may be caused to the Review Petitioners. Whether the decree is executable or not is a contention which can be raised by the Petitioners in pending execution application. There is no error apparent on the face of the record and even otherwise there is no ground for Review. 4 rev9072-10 4. Nevertheless, the Petitioners have fairly offered another premises to the Respondents by filing an undertaking in the form of affidavit to which reference has been made earlier. If the Respondents accept the possession of the said premises, it is obvious that the Respondents will not be entitled to execute the decree. To enable the Respondents to consider offer made by the Petitioners, time deserves to be granted till 30th April, 2011. It is obvious that till the said date no further steps will be taken for execution. If the Respondents are willing to accept the offer made by the Review Petitioners, they shall accordingly inform Petitioner No. 1(A) by writing a letter. Within one week from the date of the receipt of the letter, the Review Petitioners shall place the respondents in possession of the premises offered by executing a registered document. If the Respondents fail to avail the said offer made by the Petitioners on or before 30th April, 2011, it will be open for the Petitioners to deal with the premises offered and it will be open for the Respondents to proceed with the execution application. In such event, objections to executability of the decree will remain open. 5. Hence, I pass the following order : 5 rev9072-10 :: O R D E R :: i. Review Petition is disposed of. ii. The undertakings in the affidavit dated 17th January, 2011, of the Petitioners are accepted. iii. If the Respondents desires to avail of the offer given by the Petitioners which is recorded in the affidavit, the Respondents will issue a communication in writing to that effect to Petitioner No.1(A) on or before 30th April, 2011. Within one week from the date of receipt of the communication, the Petitioners will place the Respondents in possession of the premises described in paragraph (2) in the said affidavit. The Review Petitioners shall ensure that requisite registered document of transfer is executed by the owner of the premises. iv. The Petitioners shall be bound by the offer and undertaking till 30th April, 2011. If the Respondents failed to accept the offer by writing a letter as 6 rev9072-10 aforesaid on or before the said date, it will be open for the Petitioners to deal with the said premises, and from 1st May, 2011, the Petitioners will not be bound by the undertaking. v. Till 30th April, 2011 the execution application will not proceed. vi. In the event, the offer of the Petitioners is accepted by the Respondents, it is obvious that the execution cannot proceed. vii. If offer is not accepted by the respondents within the stipulated time, the execution shall proceed in accordance with law. viii. All objections, if any, of the Review Petitioners as regards the executability of decree are expressly kept open. ix. There will be no order as to costs. JUDGE