IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 21 OF 1997 LETTERS PATENT APPEAL NO. 21 OF 1997 LETTERS PATENT APPEAL NO. 21 OF 1997 IN IN IN FIRST APPEAL NO. 837 OF 1980 FIRST APPEAL NO. 837 OF 1980 FIRST APPEAL NO. 837 OF 1980 Shri Sumatilal Chindulal Burad ...Appellant V/s. Sitaram Tukaram Dandgoval, since deceased through his heirs and legal representatives 1a) Smt.Tarabai W/o. Balajirao Vadnere & Ors. ...Respondents Mr.K.Y. Patil i/b. Mr.P.N. Joshi for the Appellant. Mr.S.M. Kamble for Respondent Nos.1A to 1D, 2A, 3, 4A, 4D and 4E. CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. V.M. KANADE, JJ. V.M. KANADE, JJ. DATED : JANUARY 17, 2008 DATED : JANUARY 17, 2008 DATED : JANUARY 17, 2008 P.C. :- P.C. :- P.C. :- 1. By this appeal, the appellant challenges the order passed by the learned Single Judge of this Court dated 8th November, 1996 passed in First Appeal No.837 of 1980. That appeal was filed by the present respondent challenging judgment and decree passed by the trial court in Special Civil Suit No.202 of 1977 granting decree of specific performance of the contract in favour of the plaintiff. The defendant-respondent was directed by the decree to execute sale deed in favour of the plaintiff. - 2 - 2. We have heard the learned Counsel for both the parties. We find from the order of the learned Single Judge that while disposing of the first appeal, no points for consideration and determination have been framed by the learned Single Judge. The learned Single Judge held that the plaintiff is not entitled to decree of specific performance because he has suppressed the fact that he had filed Regular Civil Suit No.31 of 1976 against the defendant and in that suit, he had obtained the order of attachment before judgment in relation to suit property. We find from the record that this observation of the learned Single Judge that the fact that the plaintiff had obtained an order of attachment before judgment in relation to the same property in another suit, has been specifically stated in his deposition before the trial court wherein he has stated "I then filed Reg.C.S.No.31/76 against defendants Nos.2 to 4 as I apprehended that I could get nothing if I waited. I got the suit property attached before judgment in the said suit. I filed said suit on 22-3-76." Thus, the observation made by the learned - 3 - Single Judge and the reasons given by the learned Single Judge for setting aside the order of the trial Court granting decree of specific performance is factually incorrect. The learned Single Judge while disposing of the first appeal ought to have framed the points for consideration and considered the record and all the contentions that were raised by both the parties. That has not been done. In our opinion, the order passed is not sustainable in law. In our opinion, the following order would meet the ends of justice :- 1) Order dated 8th November, 1996 passed by the learned Single Judge in First Appeal No.837 of 1980 is set aside. 2) First Appeal No.837 of 1980 is remitted back to the learned Single Judge for consideration and decision, in accordance with law. 3. Appeal is disposed of. No order as to costs. (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) - 4 - (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)