(1) CA. 12641.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 12641 OF 2009 IN SECOND APPEAL NO. 259 OF 2009 M/s Reliance Automotive (India) through it's Partners .. Appellants VERSUS The Collector and others .. Respondents Mr. Niteen V. Gaware, Advocate for the appellants Mrs. Madhaveshwari D. Thube, Advocate for the respondent nos. 2 and 3 Smt. V.A. More, AGP for the respondent-State ... CORAM : A.V. NIRGUDE, J. DATED : 23RD FEBRUARY, 2010 P.C.:- 1] This application is moved for seeking modification in the order dated 14.8.2009 passed on Civil Application no. 3707 of 2009 in Second Appeal no. 259 of 2009. The applicants were the appellants in this Second Appeal. Before the Appeal could be heard for admission, on the above mentioned Civil Application no. 3707 of 2007 taken out by the applicants/appellants, by consent the following order was obtained:- . On the appellants depositing Rs.10,47,511=68 on or before 14.10.2009, the second appeal shall stand allowed and (2) CA. 12641.2009 the judgments of both the lower Court shall stand set aside. If the amount is not deposited as directed above, the second appeal shall stand dismissed. . If the amount as directed above is deposited, the lower Court shall permit the appellants-plaintiffs to adduce further oral and documentary evidence, subject to cross- examination by the respondents-defendants. The lower Court shall also give sufficient opportunity to the respondents-defendants to lead further evidence, if they want. In case the suit is dismissed, the amount deposited by the appellants shall be paid to the respondents. The respondents shall not dis-possess the appellants without following the due process of law. 2] Thereafter, the applicants-appellants moved the present application on 7.10.2009, when they realised that they would not be able to deposit the amount which they agreed to deposit by 14.10.2009. On 9.10.2009, the respondents filed reply and opposed the application. On 11.10.2009 they expressed their reservation to make further modification in the order dated 14.8.2009. Since there was no order preventing the respondents from taking action against the applicants-appellants, they executed the order passed by the competent authority appointed under the provisions of Bombay Government Premises (Eviction) Act, 1955 dated 6.8.2001, seeking eviction of the applicants/appellants from the suit premises. On 3rd February, 2010, the applicants' Advocate expressed (3) CA. 12641.2009 his clients' desire to deposit the amounts which the respondents demanded as arrears of rent etc. and I simply recorded such statement. In pursuance to such statement, the applicants/appellants deposited Rs.10,47,511=68 in the Court on 8.2.2010. In the light of this factual background, the present application is required to be decided. 3] The learned Advocate appearing for the applicants asserted that since his client had taken steps pursuant to the present application and since they are within the knowledge of the respondents, their action of 11.01.2010 was vindictive and malafide one because admittedly before taking such action they did not inform the appellants and the Court about it. He said, this should be viewed seriously and the respondents should be debarred from opposing the present application. On the other hand, the learned Advocate appearing for the respondents asserted that the order of eviction passed by the competent authority was passed way back in 2001 and the applicants/appellants were quite aware of the same. She said since there was no preventive order passed against her client, their action of 11.01.2010 was well within the limits of law. . Advocate for the applicants further asserted that since the order dated 14.8.2009 was not the Court's order, but was an order passed by consent of (4) CA. 12641.2009 the parties, the present application can-not be considered by the Court. Since the order of 14.8.2009 was a contract between the parties, there could have been no modification in the terms of such contract unless both the parties agree to it. No doubt on 7.10.2009, the applicants/appellants made a feeble attempt to seek consent of the respondents for modification of the consent terms, but promptly on 9.10.2009 the respondents showed their reluctance to give any further time for depositing the amount. So the fate of the present application got sealed on 9.10.2009 itself. There was no question of deciding the application on merits. The action taken by the respondents to dispossess the applicants-appellants, in my view, would not affect the fate of this application. One more thing is required to be made clear. In the order dated 14.8.2009, the last line of paragraph no.1 reads as under:- . "The respondents shall not dis-possess the appellants without following the due process of law." . This part of the consent terms is really futile because both the parties knew that the due process of law for evicting the applicants/appellants was already taken and it is pending only the execution. (5) CA. 12641.2009 4] The Application thus, would not survive. The Civil Application stands rejected. The applicants- appellants are at liberty to get refund of the amount which they deposited on 8.2.2010. 5] An authentic copy of this order, duly authenticated by the Court Sheristedar, be provided to the parties to act upon. Sd/- (A.V. NIRGUDE, J.) arp