.abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 5926 OF 2008 IN FIRST APPEAL NO. 1036 OF 2008 ------------------------------------------------------------------------ Office Notes, Office Memoranda of : coram, appearances, Court’s Orders: Court’s or Judge’s orders or directions and Registrar Orders: ------------------------------------------------------------------------ Mr.M.P. Vashi for the applicants. Mr.Vivek Kantawala for the respondent. CORAM : D.G. KARNIK, J. DATE : 15TH DECEMBER 2008 P.C. P.C. P.C. : 1. Heard. 2. This application is taken out by the applicants who are judgment debtors, for restoration of possession which has been taken by the respondent in execution of the decree. 3. By an order dated 2nd June 2008, this Court while admitting the first appeal granted stay for execution of the decree on condition that the applicants pay compensation at the rate of Rs.1000/- - 2 - per month prospectively. The respondent executed the decree alleging that the compensation was not paid and, therefore, the stay was not in operation. 4. After the stay was granted, the respondent had moved this Court for modification of the order. The Court declined to modify the order. Thereafter the respondent sent the amount of compensation by cheque vide letter dated 18th September 2008. Xerox copies of the letter and the intimation of the post office regarding delivery of intimation are filed on record. The respondent, however, executed the decree without disclosing the letter. 5. Mr.Vashi, learned counsel for the applicants, submits that the applicants are and were always ready and willing to pay the compensation as directed by the Court. In fact, they had tendered the compensation in September 2008 itself but it was refused. Even earlier, the compensation was sought to be tendered to the advocate of the respondent. However, there is some dispute about tendering of - 3 - the amount to the advocate and I would not like to go into that question at this stage. Suffice it to say that the compensation was tendered to the respondent also by a letter. 6. The applicants are poor persons belonging to the lower strata of the society and are sweepers. The plaint discloses that they were allowed to occupy the premises as they were in service of the respondent as sweepers. They have no other place of residence in Mumbai and, if they are evicted while first appeal is pending, they would suffer irreparable loss. Small delay of couple of months in tendering the compensation can be condoned in the peculiar facts and circumstances of the case, subject to the applicants filing an undertaking that they would pay the compensation regularly every month. 7. The applicants have made out a strong prima facie case. Recent decision of the Full Bench of this Court regarding jurisdiction of the City Civil Court is in favour of the applicants. Hence, I pass the following order:- - 4 - (a) The civil application is allowed. The respondent is directed to put the applicants back in possession of the property subject to the following conditions:- (i) The applicants shall tender to the respondent all the arrears upto date in cash within one week and if the same is refused, the applicants shall send the amount by pay-slip/banker’s cheque/ demand draft by Registered Post A.D. at the address mentioned in the title of the civil application. (ii) The applicants shall every month tender the amount of compensation of Rs.1000/- to the respondent in cash and if the respondent refuses to accept the same, the applicants shall send the amount by pay-slip/banker’s cheque/demand draft by Registered Post A.D. at the address mentioned in the title of the civil application. (b) If the respondent does not hand over the possession of the suit premises - 5 - to the applicants in pursuance of this order, the applicants shall be entitled to execute this order through the same Court which executed the order impugned in this appeal. (c) The applicants shall file an undertaking within 2 weeks in this Court that they would make the payment of compensation every month. (d) The civil application is disposed of. (D.G. KARNIK, J.)