1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1614 OF 2008. Shantabai W/o Ramratan Shrivastav and others ... Petitioner. Versus Shankar S/o Jaikisan Wadgaonkar and others ... Respondents. ... Mr.S.P.Deshmukh, advocate for the petitioner. Mr.L.V.Sangeet, advocate for the Respondent Nos.2 and 3. Respondent Nos.7 and 8 served. ... CORAM : V.R.KINGAONKAR,J. Date : 06.07.2009. PER COURT 1. Heard. 2. By this petition, the petitioners challenge order dated 11.10.2006, rendered on an application (Exh.33) and order dated 10.8.2007, rendered on an application (Exh.46) by the 2 learned Civil Judge (J.D.) in suit bearing (RCS No.137/2000) filed by the present petitioners. By order dated 11.10.2006, the suit was directed to be stayed U/s 10 of the C.P.C. in view of pendency of Second Appeal which arises out of suit bearing RCS No.27/1991 filed by the Respondents. The petitioners thereafter again filed an application and sought fixing for date of hearing which application came to be dismissed. 3. The parties to the litigation in both the suits i.e. (RCS No.27/91) and the suit filed by the present petitioners i.e. (RCS No.137/2000) are same. The property involved is also same. The petitioners have filed suit for specific performance of an agreement of sale. It appears that the Respondents filed suit (RCS No.27/1991) for redemption of mortgage in respect of the suit properties. According to the petitioners, there was subsequent agreement of sale and, therefore, their rights have been amplified. Mr.Deshmukh, would submit that rights of the petitioners to seek relief of specific performance would stand 3 on different footing than the rights which were subject matter of earlier suit (RCS No.27/91) and, therefore, there is no need to stay the subsequent suit filed by the petitioners. He invited my attention to certain observations in "Babu Rasul Mujawar Vs. Sadashiv Govind Hazare and others" 2006 (5) Mh.L.J.768. This Court observed that when a mortgagor/vendee agrees to sell the mortgaged property to the mortgagee/putative vendee in possession, the mortgagee's status is subsumed or merged in his rights as a putative vendee under Section 53-A of the Transfer of Property Act against the transferor. It appears that in the previous suit (RCS No.27/91) there was issue raised as regards the execution of the agreement of sale of which the specific performance is being sought by the petitioners. It was contention of the Respondents that the so-called agreement of sale was fabricated. The trial Court seems to have answered the said issue in negative. Inspite of this, the suit of the Respondents for foreclosure of mortgage and redemption came to be decreed. The question is not as to whether the petitioners 4 have any right to claim specific performance but the question is whether the issue which was involved in earlier litigation is involved in the subsequent one or not. For, the Second Appeal arising out of the judgment in RCS No.27/91 is pending before this Court and it is probable that the same issue viz; whether the agreement of sale is fabricated or not and whether the status of the parties changed as a result of such agreement of sale may be considered by this Court while deciding the Second Appeal. At present, nothing can be said about such probable consideration of the said issue. The fact remains, however, that such a common issue is involved in both the litigation. 4. The learned trial Judge passed order on an application (Exh.33) on 11.10.2006, whereby the proceedings of suit (RCS No.137/2000) came to be stayed. The petition is filed at a belated stage and perhaps by innovatively filing an application (Exh.46) for fixing of date of hearing which request was nothing but calling upon the trial Court to review its earlier order. 5 Such innovative explanation about delay, however, does not enure to the benefit of the petitioners. One can not be oblivious of the fact that petitioners filed their suit after about nine (9) years of filing the earlier suit (RCS No.27/91) by the Respondents. They could have filed counter claim in the said suit. Needless to say, they have themselves committed delay and, therefore, further stay of the suit is not likely to cause any prejudice to them. 5. The impugned order appears to be within the frame work of Section 10 of the C.P.C. and the same needs to be continued in view of the fact that the earlier suit is likely to be finally decided in the Second Appeal pending before this Court. Nothing perverse is noticed from the impugned order. Hence, the petition is dismissed on merits on account of delay and laches. The observations in this order may not be considered in any other proceedings. (V.R.KINGAONKAR,J.) asp/office/wp161408 6