1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL SIDE REVIEW PETITION NO.13 OF 2009 IN FIRST APPEAL NO.1129 OF 1987 WITH CIVIL APPLICATION NO.4859 OF 2009 Shri Manikchand B. Kataria Since Deceased through his L.H. 1a. Smt. Ashalata M. Kataria & Ors. ..Petitioners. v. Shrimant Rajasaheb S. B. Pantpratinidhi Since deceased through his legal heirs 1a. Smt. Gayatridevi B. Pantpratinidhi & Ors. ...Respondents. Mr.V.Z.Kankaria with Shri S.H.Joshi, advs. For the petitioners. Mr.Nitin P. Deshpande, adv. For the Respondent Nos.1(1) to 1(3) and 9. Mr. Abhishek Pungalia i/by Mr. Mohan Pungalia , advs. for the Respondent Nos.13. CORAM : J.H. BHATIA, J. DATED : FEBRUARY 26, 2010 P.C. 1 The original appellants seek to review and recall the order passed by this Court on 7th September, 2009 whereby the appeal against the dismissal of the prayer for specific performance of the contract was not granted but only direction was given to refund the earnest money 2 with interest. It appears that the plaintiffs had filed First Appeal No.1129 of 1987 against the dismissal of his suit for the specific performance of the contract. That appeal was admitted on 7.1.1988. Appeal was on the board for final hearing. However, the matter was taken up as if it was at the admission stage and, therefore, the matter was heard and finally disposed off whereby this Court found no fault with the dismissal of the prayer for specific performance of the contract and came to conclusion that the plaintiffs/appellants were entitled to refund of the earnest money with interest. Order was passed with consent of the learned counsel for the parties. Mr. Kankaria the learned counsel for the appellants points out that Mr. Pungaliya advocate, who had then appeared for the plaintiffs/appellants, had wrongly given consent for this without instructions from the appellants for that purpose. Mr. Pungaliya has denied that he had wrongly given consent. 2 First sentence of the judgment dated 7th September, 2009 clearly shows that the appeal was taken up for final hearing and disposal at the admission stage, which was not correct. In fact, when the appeal is already admitted, appeal has to be heard and disposed off by passing the judgment following the procedure laid down under Order 41 Rule 31 which requires the Court to state the points for determination, 3 the decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. After admission, the appeal could not be disposed off summarily. Even though some reasons were given while allowing the appeal partly to the extent of earnest money, it must be said that because the appeal was proceeded as if it was being heard at the time of admission, detailed reasons were not given for coming to conclusion on each point. In Khatunbi M. Sayeed and others v. Aminabai M. Sabir 2006(6) Mh.L.J. , the Division Bench of this Court held that non- compliance of Rule 31 of the Order 41 is not mere irregularity because the said rule is mandatory. The order dated 7.9.2009 clearly shows that under the mistaken impression that the matter is being taken up at the admission stage, procedure laid down in Rule 31 was not followed . In my considered opinion, this is sufficient reason to review and recall the order passed by this Court on 7th September, 2009 and to give opportunity to the parties of being heard in detail at the time of final hearing of the appeal. 3 Therefore, review petition is allowed. Order dated 7.9.2009 is hereby recalled and the First Appeal No.1129/1987 is restored to the file. Appeal be listed before the appropriate Court for final hearing and 4 disposal as per law. As the appeal itself is restored , the interim order, which was in force earlier will continue to be in force pending the appeal. Civil Application No.4859 of 2009 also stands disposed off accordingly. 4 At this stage, Mr. Deshpande the learned counsel for the respondent nos.1(1) to 1(3) and 9 seeks stay to this order for some time. Therefore, the appeal shall be listed for final hearing only after four weeks. (J.H. BHATIA,J.)