1 ca 2305-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 2305 OF 2010 IN WRIT PETITION NO. 1077 OF 2010 Nashik Municipal Corporation ..Applicant vs. M/s.R.M. Bhandari & Anr. ..Respondents Mr.M.L. Patil for the Applicant. Mr.G.S. Godbole i/b. Mrs.Jai V. Kanade for the Respondents. CORAM : B.R. GAVAI, J DATED : JANUARY 28, 2011. P.C. : 1 By way of present civil application, the applicant is seeking extension of period as was directed by this Court vide Order dated 3rd May, 2010. 2 There is chequered history of litigation between the parties. Suits were filed against each other claiming damages in relation to a contract 2 ca 2305-2010.sxw which was awarded by the applicant to the respondents. 3 The suit filed by the respondents was dismissed by the trial court and the suit filed by the present applicant was decreed. It appears that being aggrieved thereby, the first appeal was preferred by the respondents herein. During the pendency of the appeal, the execution petition filed by the present applicant came to be dismissed for default. The application for restoration of the same was made by the present applicant came to be dismissed for default on 29th July, 2006. Vide Order dated 29th October, 2007, the Executing Court dismissed the said application. Thereafter, on 17th December, 2007, a fresh execution application was filed by the applicant. An objection was raised thereto by the present respondent on the ground that the said application was beyond limitation and as such, the same was also rejected on 21st March, 2009. Writ 3 ca 2305-2010.sxw Petition No.6622 of 2009 was filed by the petitioner challenging order dated 21st March, 2009. Writ Petition No.1077/2010 was filed challenging order dated 29th October, 2007. The said Writ Petition No.6622/2009 which dismissed the second execution application was rejected by this Court vide common order dated 3rd May, 2010. Writ Petition No.1077/2010 was allowed subject to payment of costs of Rs.25,000/- within a period of eight weeks from the date of the order. The payment of costs was condition precedent. It was clarified that the execution application will stand restored only if the compliance is made with the payment of order of costs. Since the costs could not be deposited within the stipulated period, hence the present application. 4 Shri Patil, learned Counsel for the applicant submits that since the matter was old matter, the record was not available before the Executing Court and as such, the costs could not 4 ca 2305-2010.sxw be deposited. He, however, submits that when an application was made before the learned Executing Court on 30th June, 2010 to accept the costs, the learned trial court observed that since the period is over, the costs could not be deposited. Shri Patil, therefore, submits that in these circumstances, the present application was required to be filed. He submits that this Court by executing power under Section 148 of the CPC should extend a the time, in the facts of the case. The learned Counsel placed reliance on the judgment in the case of D.V. Paul vs. Manisha Lalwani ((2010) 8 SCC 546) 5 Shri Godbole, learned Counsel for the respondents, on the contrary, submits that in view of certain developments that have taken place in the present matter, this Court should not exercise the discretion vested in it. He submits that since the decree had become inexecutable, the first appeal filed by the present petitioner was sought 5 ca 2305-2010.sxw to be withdrawn on 13th January, 2009. He submits that vide Order of the same date, the Court allowed withdrawal of the appeal. He further submits that the order dated 3rd May, 2010 allowing the writ petition No.1077/2010 was challenged before the Apex Court by way of Special Leave Petition and the same is not entertained by the Apex Court since it was not found necesary since the applicant herein has not deposited the costs. 6 So far as the judgment of the Apex Court in the case of D.V. Paul vs. Manisha Lalwani (supra) on which Shri Patil, learned Counsel for the applicant relies, no doubt that normally this Court could have exercised the jurisdiction vested in it under Section 148 of the CPC to extend the period. However, I find that in the peculiar facts of the present case, the applicant is not entitled to the relief sought in the application. 6 ca 2305-2010.sxw 7 From the perusal of the order dated 3rd May, 2010, it would reveal that the learned Judge of this Court while considering Writ Petition No. 6622/2009 vide which the second Execution Petition was dismissed on the ground of limitation has found the said petition to be without merit and has dismissed the same. However, taking into consideration that the applicant-petitioner is a Municipal Corporation and a public body, in the Writ Petition No.1077/2010 vide which the learned Executing Court had refused to allow application for restoration of the Darkhast, allowed the petition subject to costs quantified at Rs. 25,000/-. It is not in dispute that the said order was challenged by the present petitioner by way of Special Leave Petition No.21975/2010. The Apex Court has passed the following order on 16th August, 2010 :- Since the costs have not been deposited as per the impugned order of the High Court, there is no question of entertaining this 7 ca 2305-2010.sxw petition. Hence, the special leave petition is dismissed as withdrawn. 8 It is, thus, clear that on account of non- deposit of the amount within the stipulated period, the Apex Court has refused to entertain the Special Leave Petition. The Apex Court has refused to entertain the Special Leave Petition as there was no question of entertaining the petition since the costs as directed by this Court were not deposited. The SLP was, therefore, sought to be dismissed as withdrawn. It is, thus, clear that had the costs being deposited, the Apex Court might have entertained the matter challenging the order passed by the learned Single Judge of this Court allowing the writ petition No.1077/2010. It is on account of non-deposit of the costs by the present applicant within the stipulated period, the respondent has lost his right to challenge the order passed by this Court in Writ Petition No. 1077/2010. 8 ca 2305-2010.sxw 9 In these peculiar facts and circumstances though noticing that the applicant is a public body, I am not inclined to entertain the present application. 10 The application, therefore, is rejected. (B.R. GAVAI, J)