1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 1232 OF 2000 CIVIL REVISION APPLICATION NO. 1232 OF 2000 CIVIL REVISION APPLICATION NO. 1232 OF 2000 1) M/s. Pooja Enterprises, ) a proprietary firm by and ) through its proprietor herein ) below. ) 2) Shri Vijaykumar Motilal Sancheti) Ahed Adult, Occupation Builder ) and Promoter, R/at Shivashakti ) Society, Plot No.8-C,Paud Road, ) Pune 411 029. )..Petitioners (Orig.Defts.Nos.1 & 2/ Judgment Debtors 1 & 2( Versus 1) Shri Kishanlal Hariram Shroff ) Aged adult, Occ. business, ) R/at Amit Apartments, Flat No.5,) 1098/1A, Shivaji Nagar, ) Pune 411 016 ) 2) Mrs. Rukmini Kishanlal Shroff, ) Aged adult, Occ. Housewife, ) 2 R/at as above. ) 3) Shri Datatray Ramchandra Modak ) Aged adult, Occ. busines, ) R/at Hadapsar, Malwadi, ) Survey No.165, Pune 411 928. ) 4) Shri Mahadeo Ananta Kamthe, ) Aged adult, Occ. business, ) R/at Post Bhivari, ) Tal. Purandar, Dist. Pune. )..Respondents (Nos.1 & 2 - org.plffs/ Decree holders) (Nos.3 & 4 - org.defts. Nos.3 & 4/Judgment debtors Nos. 3 & 4). Mr. S.S.Kulkarni, Advocate, for the petitioners Mr. V.G.Muzumdar, Advocate, for the respondent Nos. 1 & 2. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 25th February,2008. DATE: 25th February,2008. DATE: 25th February,2008. JUDGMENT JUDGMENT JUDGMENT 1. To state in brief, the plaintiffs/respondents 3 had filed Special Civil Suit No.1042 of 1988 for specific performance of the contract of sale of the suit property for consideration of Rs.65,000/-. According to the plaintiffs, an amount of Rs.47,001/- was already paid and balance amount of Rs.17,999/- was yet to be paid. The suit was contested. After hearing the parties, the trial Court passed the Judgment dated 5.12.1998. By the said judgment, the suit for specific performance of contract for sale was decreed and the plaintiffs were directed to deposit the balance amount of Rs.17,999/- in the Court within one month from the date of the judgment and it was directed that on the money being deposited, the defendants Nos. 1 and 2 shall execute the sale deed within one month from the date of deposit, failing which the plaintiffs would be entitled to have sale deed executed through Court. There is a further direction in the decree that if the plaintiffs fail to deposit the amount within the time allowed, the suit will stand dismissed with costs to the defendants. As the judgment was passed on 5.12.1998, the balance amount of consideration was required to be deposited on or before 5.1.1999. Admittedly, the amount was not deposited by the plaintiffs within the stipulated period. On 11.6.1999, the plaintiffs filed an application before the trial Court seeking permission to deposit the amount. On the same day, the learned 4 trial Court directed the Nazir of the Court to accept the amount and accordingly the amount was deposited on that day. After the said deposit, on 16.8.99, the plaintiffs/decree holders filed execution petition seeking execution of the sale deed and possession. It appears that the Court appointed a Commissioner and directed the said Commissioner to execute the sale deed in favour of the plaintiffs/decree holders for and on behalf of the defendants/judgment debtors. That order was passed on 4.5.2001 and accordingly the sale deed came to be executed and registered, however possession is not yet given to the plaintiffs. 2. The defendants, who are the revision-applicants before this Court, filed an application before the executing Court in Special Darkhast No.211 of 1999 contending that the plaintiffs had failed to deposit the balance amount of consideration within one month from the date of the judgment dated 5.12.1998 and in view of the specific direction given in the said decree, on expiry of one month due to non-deposit of the amount, the suit itself stood dismissed and therefore the decree could not have been executed and the said Darkhast should be dismissed with costs. That application was opposed. After hearing the parties, the executing Court passed the impugned order on 11.10.2000 and rejected the 5 application filed by the judgment debtors. The main reason given by the executing Court was that the trial Court had already permitted the amount to be deposited and secondly the appeal by the defedants was not filed within limitation and the application for condonation of delay was rejected by the learned Single Judge of this Court and the Letters Patent Appeal was also dismissed. It was stated that in view of that the Appeal itself was dismissed and the decree had become final. The defendants have preferred the present Revision Application challenging the order dated 11.6.99 whereby the trial Court had allowed the plaintiffs/decree holders to deposit the amount in the Court and also the order dated 11.10.2000 passed by the executing Court rejecting the objections taken by the defendants/judgment debtors under Section 47 of C.P.C. 4. Admittedly, the defendants had preferred an appeal against the judgment and decree before the High Court, but as there was delay, they had also filed Civil Application for condonation of delay. That Application for condonation of delay came to be dismissed by the learned Single Judge of this Court. Against that order, the defendants had filed Letters Patent Appeal before the Division Bench. That Appeal was also dismissed. Thereafter, the defendants filed Special Leave Petition 6 and the Special Leave Petition was allowed and delay was condoned and the High Court was directed to hear the First Appeal No.529 of 2001 on its merits. The Appeal has been admitted and it is still pending for final disposal. Therefore, in this Revision, it is not necessary nor it is desirable to make any observations about the merits and the rival contentions in the said suit or the Appeal. However, as the appeal is still pending it canot be said that the decree has become final. 5. Admittedly, the trial Court while granting decree for specific performance of the contract by Judgment dated 5.12.1998, had directed the plaintiffs to deposit the balance amount of Rs.17,999/- in the Court within one month from that day. Subject to compliance of that direction, the defendants were to execute sale deed in favour of the plaintiffs. In clause 3 of the order, it was directed that if the plaintiffs fail to deposit the amount within the time allowed, the suit shall stand dismissed with costs to the defendants. Admittedly, the plaintiffs did not deposit the amount within one month from the date of the decree. The natural result of non-compliance of the direction to deposit the amount within the stipulated period was that on expiry of one month, the suit would stand dismissed. On 11.6.99, the 7 plaintiffs filed an application before the trial Court seeking permission to deposit the amount. In that application, it was contended that certified copy was received on 10.6.99 only and that according to the plaintiffs, the amount was to be deposited after receipt of the certified copy. On the same day, the trial Court passed the order "Nazir to accept the amount" and accordingly the amount was deposited. Admittedly, no notice was given to the defendants nor an opportunity was given to the defendants of being heard on this application. In fact, as a result of clause 3 of the final order in the judgment, the suit was deemed to have been dismissed due to failure of the plaintiffs to deposit the amount within one month from 5.12.1998 and the result of allowing the plaintiffs to deposit the amount afterwards would be to revive the decree in favour of the plaintiffs. The vital right of dismissal of the suit had accrued to the defendants due to non-deposit of the amount in the Court, however, that right was taken away by the trial Court by allowing the plaintiffs to deposit the amount on 11.6.99 and that too without given an opportunity to the defendants to oppose that application. 6. It may be noted that there was a controversy as to whether the trial Court had jurisdiction to pass such 8 order or not. The learned Counsel for the defendants/revision-applicants, relying on Bhujangrao Bhujangrao Bhujangrao Ganpati vs. Sheshrao Rajaram AIR 1974 Bombay 104, Ganpati vs. Sheshrao Rajaram AIR 1974 Bombay 104, Ganpati vs. Sheshrao Rajaram AIR 1974 Bombay 104, contended that when the decree was passed subject to condition of depositing the amount, if the amount is not deposited within the stipulated period, the period could not be extended and the trial Court had no jurisdiction to pass order. However, it appears that after going through several authorities, another learned Single Judge of this Court in Smt. Vatsala Shankar Bansole vs. Smt. Vatsala Shankar Bansole vs. Smt. Vatsala Shankar Bansole vs. Shri Sambhaji Nanasaheb Khandare and Anr. AIR 2003 Shri Sambhaji Nanasaheb Khandare and Anr. AIR 2003 Shri Sambhaji Nanasaheb Khandare and Anr. AIR 2003 Bom.57 Bom.57 Bom.57, held that the view taken in Bhujangrao Ganpati’s Bhujangrao Ganpati’s Bhujangrao Ganpati’s case is no more a good law and the trial Court has still jurisdiction to pass the order because the decree for specific performance of contract is only a preliminary decree and as long as the final decree is not passed, the jurisdiction is still with the trial Court. In view of the Judgment in Smt.Vatsala’s case Smt.Vatsala’s case Smt.Vatsala’s case, it is not necessary for me to enter into the question of jurisdiction. 7. Assuming that the trial Court had jurisdiction, it was necessary for the trial Court to hear the parties and find out whether there were valid reasons for the delay and whether it would be in the interest of justice to condone the delay and to allow the plaintiffs to 9 deposit the said amount, result of which would be revival of the decree for specific performance of contract which had lapsed and the suit for specific performance was deemed to have been dismissed by virtue of clause 3 of the final order in the judgment. As these aspects were not considered by the Courts below, it will not be proper for this Court to consider the factual aspect in this respect in the Revision. Therefore, in my considered opinion, the Court below committed an error in allowing the application dated 11.6.99 without hearing the defendants. In fact, the trial court should have given notice to the defendants and given opportunity to give their say and if they wanted to oppose that application, both parties should have been heard and the Application should have been disposed of on ots pw merits by passing an order which the trial Court did not do. Therefore, in my considered opinion, the impugned order dated 11.6.1999 is liable to be set aside. Once that order is set aside, the order dated 11.10.2000 passed by the executing Court rejecting the objection taken under Section 47 of c.P.C. must also be set aside. 8. In the result, the Revision Application is allowed. The impugned order dated 11.6.1999 passed by the trial court permitting the plaintiffs to deposit the 10 balance amount of consideration is hereby set aside. The order passed by the executing Court on 11.10.2000 in Darkhast No.211 of 1999 rejecting the application Exhibit 54 under Section 47 of C.P.C. also stands set aside. The application dated 11.6.1999 filed by the plaintiffs is hereby remitted back to the trial Court for fresh decision after hearing both the parties. The parties shall appear before the trial Court on 17.3.2008 and within two weeks thereafter the defendants shall file their reply to the application dated 11.6.99. Thereafter the trial Court shall hear the parties and dispose of the said application on its own merits without being influenced by the observations made by any Court. Stay to the execution of the decree to the extent of possession of the property shall continue till the disposal of the application dated 11.6.1999. 11 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)