:1: 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 SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE SECOND APPEAL NO.475 OF 2008 SECOND APPEAL NO.475 OF 2008 SECOND APPEAL NO.475 OF 2008 WITH WITH WITH CIVIL APPLICATION NO.1243 OF 2008 CIVIL APPLICATION NO.1243 OF 2008 CIVIL APPLICATION NO.1243 OF 2008 Subrao Ganpatrao Shinde (Since deceased by his legal heirs) 1a. Smt.Sonabai Subrao Shinde ...Appellant. v. 1.Abdulsamad Noormohammad Mulla & Ors. ...Respondents. Mr.S.R.Ganbavale , adv. for the Appellant. Mr.A.R.Shaikh , adv. for the Respondent No.1. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 27th August, 2008. DATE: 27th August, 2008. DATE: 27th August, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the appellant and the respondent no.1. 2. To state in brief, the plaintiff, who is the respondent no.1 before this Court filed Regular Civil Suit No.651 of 1986 for specific performance of the contract for sale of the suit property bearing city survey no.872-A admeasuring 4.2 sq.mtrs. and city survey no.872 admeasuring 67.53 sq.mtr. situated within the limits of ’B’ Ward of Kolhapur Municipal Corporation. The property belongs to the original defendant nos.1 to 3. According to the plaintiff, he and his 4 brothers defendant nos.4 to 7 had entered into :2: an agreement for purchase of the suit property from the defendant no.1 with the consent of the defendant nos.2 and 3. Defendant no.8 Subrao, who is the present appellant was in possession of the property as a mortgagee from the owners of the property. Plaintiff claimed decree for specific performance of the contract for and on behalf of the himself and defendant nos.4 to 7 against the defendant nos.1 to 3 and he also claimed possession from the defendant nos.1 to 3 and defendant no.8. Several defences were taken by the defendant nos.1 to 3 denying the claim. Defendant no.8 also contested the suit. According to the defendant nos.1 to 3 and the defendant no.8, defendant no.1 has already filed the regular civil suit no.683 of 1979 against the defendant no.8 for redemption of the mortgage and possession and that suit was also decreed in 1986. However, that decree was not executed. According to the defendant no.8, the defendant no.1 had under a fresh agreement in 1988, agreed to sell the suit property to him and he was in possession of the suit property on the basis of agreement for sale and, therefore, the suit filed by the plaintiff could not be decreed. 3. The trial Court after hearing the evidence of both the parties decreed the suit in favour of the plaintiff and the defendant nos.4 to 7. The trial Court directed the defendant no.1 to execute the sale deed of the suit land as per the agreement. In paragraph 5 of :3: the final order, the trial Court directed the defendant no.1 and legal representatives of the defendant no.8 to deliver the vacant possession of the suit property. 4. The judgment and decree passed by the trial Court was challenged by the defendant no.8 in Regular Civil Appeal No.356 of 1999 and by the original defendant nos.1 to 3 in Regular Civil Appeal No.400 of 1999. Both the appeals came to be dismissed. The Appellate Court noted that the alleged agreement dated 15-11-1988 between the defendant no.1 and the defendant no.8 was hit by the principles of lis-pendens under Section 52 of the Transfer of Property Act as the suit filed by the plaintiff was already pending, and, therefore, the defendant no.8 could not get protection under Section 53A. Thus, the learned Appellate Court came to conclusion that the agreement dated 15-11-1988 was irrelevant for the purpose of this suit. Against dismissal of the appeal, the defendant no.8 has preferred this Second Appeal. 5. From the facts and circumstances noted above, it is clear that the defendant no.8 is in possession of the suit property as a mortgagee from the defendant no.1 and for the redemption of the mortgage and possession, already the decree has been passed in 1986 in favour of the defendant no.1 in Regular Civil Suit No.683 of 1979. The plaintiff and the defendant nos.4 to 7 in the :4: present litigation are entitled to get the decree for specific performance against the defendant nos.1 to 3. Defendant no.1 has not filed any appeal against judgment of the District Court. Thus, the said judgment and decree have become final about execution of the sale deed. As per the said decree, plaintiff and the defendant nos.4 to 7 would step into the shoes of the vendor, i.e., the defendant no.1 and thus, in relation to the defendant no.8, they would be in position of the mortgagers. As such, they can claim possession of the property by redeeming the mortgage as per the law. In view of this after some discussion, the learned counsel for the Parties consented that the paragraph 5 of the final order passed by the trial Court may be modified as follows: "5. On execution of the sale deed as per this decree, the plaintiff and the defendant nos.4 to 7 shall be entitled to redeem the mortgage and get possession from the defendant no.8 as per the law as if they step into the shoes of the defendant no.1, the original mortgager." 6. Paragraph 5 of the final order passed by the trial Court stands modified accordingly and with these observations, appeal stands disposed off. :5: 7. As the Second Appeal itself is disposed off, Civil Application No.1243 of 2008 does not survive and stands disposed off accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)