1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 144 OF 2003 Shivaji Jivappa Kolekar (Deceased through LRs) .. APPELLANTS. VERSUS Balaji s/o Awadhumbar Patil & others .. RESPONDENTS Shri S.B. Gorde Patil, Advocate for the appellants. Shri H.V. Patil, Advocate for respondent no. 1. Shri P.S. Chavan, Advocate for respondent nos. 2 and 3. Shri Nilesh Desale, Advocate for respondent no. 6. ===== CORAM : R. M. BORDE, J. DATE : 24 th July, 2009 PER COURT : 1 This is an appeal by original defendant nos. 1A and 1B raising exception to the concurrent judgments recorded by the courts below. 2 Respondent nos. 1 to 3 / original plaintiffs instituted Regular Civil Suit no. 338/1983 claiming specific performance of agreement and in the alternative refund of consideration of Rs.13,000/-. It is the case of the plaintiffs that deceased defendant no. 1 Shivaji was the owner of block no. 210 situate at Mouje- Ambejawalga Tq. & Dist. Osmanabad. He entered into an agreement of sale for alienating 4 acres area out of the disputed 2 property in favour of the plaintiffs by executing an agreement dt.24-7-1981. According to plaintiffs, defendant Shivaji was in need of money and as such he approached plaintiff no.3 and expressed his intention to sell 4 acres of land. Plaintiff no. 3 agreed to purchase the same for consideration of Rs. 20,000/-. Defendant accepted Rs.13,000/- as earnest money and entered into agreement of sale. The transaction was to be completed prior to 31-3-1982. However, it appears that there was extension agreement entered into between the plaintiffs and defendant granting extension of time for execution of the sale-deed. It is the contention of plaintiffs that they expressed their willingness to perform their part of the contract. However, as Shivaji, defendant no. 1 refused to perform his part of the contract, notice came to be issued calling upon him to execute the sale-deed on 21-10-1982. On failure to comply with the notice, instant suit came to be presented. . 3. Shivaji defendant no. 1 appeared and resisted the suit by filing written statement. It is to be noted that defendant no. 1E is the divorced wife of deceased Shivaji. According to him, the alleged agreement is false and fabricated. He contends that he had mortgaged the entire land with District Central Co-Op Land Development Bank, Solapur and obtained loan of Rs. 3,000/- from the bank. His wife Tarabai is the real sister of plaintiff nos. 2 and 3. She had presented Regular Civil Suit no. 318/69 in the court at Barshi, Dist. Solapur for maintenance. She was granted maintenance and charge was kept on the agricultural property. His relations with defendant no. 1 E Tarabai were strained. An agreement was entered into between him and Tarabai with intervention of some of the persons whereupon he agreed to give an area to the extent of 4 acres in her favour and Tarabai in turn agreed to 3 accord consent for divorce. According to him, plaintiff nos. 2 and 3 who are the brothers of Tarabai got executed bogus agreement of sale in the name of plaintiff no. 1. According to him, certain blank stamp papers were given in her possession which have been misutilised by the plaintiff. According to defendant Shivaji, there is charge of District Central Co-op. Land Development Bank over the suit property for recovery of amount of Rs. 3,000/- borrowed by him towards loan. Charge is also created on the landed property in favour of Tarabai in respect of maintenance amount payable in pursuance to the decree passed in Regular Civil Suit no. 318/1969. With these contentions, defendant prays for dismissal of the suit. During the continuance of the suit, defendant no. 1 Shivaji died. Defendant nos. 1A and 1B got themselves impleaded as legal heirs of deceased Shivaji. Defendant nos. 1 C and 1 D also presented an application for their impleadment as beneficiaries under the will-deed executed by deceased Shivaji. Legal heirs of deceased Shivaji also presented their separate written statement and controverted the contentions raised by the plaintiffs. Defendant no. 1E Tarabai supported the case put up by plaintiffs. However, in her written statement, she has denied execution of alleged will-deed by deceased Shivaji which is produced on record by defendant nos. 1C and 1D. 4 After considering the pleadings, issues were framed and on consideration of the evidence tendered by the contesting parties, trial court granted decree in favour of the plaintiffs. Trial court directed the plaintiffs to deposit balance of consideration Rs.7,000/- in the court and on making such payment, defendant nos. 1C and 1D were directed to execute sale-deed of 4 the suit land in favour of the plaintiffs. Judgment and decree passed by the trial court was subjected to appeal at the instance of defendant nos. 1A and 1B / appellants herein by presenting Regular Civil Appeal no. 109/1993. Defendant no. 1D also presented separate appeal being Regular Civil Appeal no. 144/93 before the district court. Both the appeals came to be disposed of by the learned District Judge, Osmanabad who was pleased to dismiss the same by judgment and decree dt. 18-12-2000. Original defendant nos. 1A and 1B are raising exception to the concurrent judgments recorded by the courts below by presenting instant second appeal. 5 I have heard arguments advanced by learned counsel for the respective parties. It is strenuously contended by learned counsel for the appellants that there was loan payable to the Land Development Bank and the charge in respect of repayment of loan amount was created and kept on the disputed property. It is also his contention that in civil litigation between deceased Shivaji and Tarabai there was a decree passed in respect of payment of maintenance and the charge in respect of payment of maintenance amount was kept on the disputed land. According to him, in this view of the matter, it was not open for Shivaji to enter into transaction with plaintiffs. He has also seriously controverted the contention in respect of payment of consideration amount of Rs.13,000/-. It is further his contention that the agreement itself is bogus and fabricated. 6 Learned counsel appearing for the respondents have supported the judgment and decree passed by the courts below. So far as conttentions raised by appellant in respect of creation of charge over the property is 5 concerned, it is to be noted that the loan was borrowed from the financing agency i.e. District Central Co-op Land Development Bank. Defence in respect of bar under section 47 and 48 of the Maharashtra Co-operative Societies Act would be available to the financing agency i.e. the District Central Co-op Land Development Bank. Bar provided under section 47 and 48 of the Act will not be attracted in respect of the transaction between plaintiffs and the bank. So far as creation of charge in respect of maintenance allowance is concerned, it is for Tarabai to take steps in that regard. Tarabai, however, by filing written statement has supported the case put up by plaintiffs. Appellants therefore cannot successfully raise defence in respect of bar of alienation of the property. So far as contention in respect of passing of consideration amount is concerned, there is finding of fact recorded by the courts below that deceased Shivaji had received an amount of Rs.13,000/- towards earnest money. It also transpires that the receipt of consideration of Rs.13,000/- has been acknowledged by deceased Shivaji in receipt at exh. 82 and 83. Courts below were justified in drawing in inference that the plaintiffs have proved passing of consideration amount to the tune of Rs.13,000/-. 7 So far as contention in respect of execution of the sale-deed is concerned, although the trial court found that on the strength of will-deed, defendant nos. 1C and 1D would be liable to execute sale-deed, however, said finding has been upset by the first appellate court and the first appellate court has observed in the judgment that all the defendants being legal heirs of deceased Shivaji would be liable to execute the sale-deed. However, while passing final order, direction contained in the last paragraph 6 of the judgment is not reflected in the order. The mistake is inadvertent mistake and can be corrected in view of provisions of Order XLI Rule 33 of the Code of Civil Procedure. Provisions of Order XLI are applicable to second appeals. Direction therefore needs to be issued that all the defendants whould be liable to execute the sale-deed in favour of the plaintiffs. For the reasons recorded above, I am of the opinion that the appeal does not raise any substantial question of law and as such deserves to be dismissed. While dismissing the appeal, however, all the defendants need to be directed to execute the sale-deed in favour of the plaintiffs in terms of the order passed by the courts below. Appeal therefore stand dismissed with clarification that all the defendants shall be liable to execute the sale-deed in favour of the plaintiffs in terms of the judgment and decree passed by the courts below. Judgment and decree passed by the trial court shall be deemed to have been modified to that extent. 8 In view of dismissal of the appeal, pending civil application, if any, does not survive and stands dismissed. ( R. M. BORDE, J.) dyb/office/sa144.03.odt