SM 1 63.cra.550.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 550 OF 2011 Shrivaji Damu Upmap ....Applicant. Versus Bhamabai Ramdas Umap ....Respondent. ____________ Mr. K. S. Dewal for the Applicant. Mr. Jaydeep S. Deo for the Respondent. CORAM: R. M. SAVANT, J. DATED : NOVEMBER 28, 2011. P.C.: The above petition takes exception to the order dated 28th March, 2011 passed by the Joint Civil Judge, Junior Division, Civil Court, Ghodnadi, Shirur, by which order, an application filed by the petitioner herein for dismissal of the execution proceedings on the ground, that the respondent herein has not deposited the amount of Rs.1,500/- which was the balance consideration amount, within the time stipulated by the decree, was rejected. 2. There is a decree in favour of the respondent herein passed in Regular Civil Suit No. 33 of 1994 dated 31st July, 1997 and which is to the following effect: 1. The suit is partly decreed with costs. 2. The defendant do execute sale deed in favour of the plaintiff as agreed in agreement dated 11.02.1986. SM 2 63.cra.550.11 3. The defendant do obtain permission for sale from the competent authority, if necessary. 4. The plaintiff do pay an amount of Rs.1,500/- to the defendants within two months. 5. The plaintiff is entitled to get execute a sale deed through Court, if the defendant refused to execute, by appointing Commissioner. 3. It appears that on 12th July, 2002, the respondent filed an application for depositing the said amount in the court on the ground that inspite of the fact that efforts being made to deposit the said amount with the judgment debtor i.e. the petitioner, the same was not accepted and hence the plaintiff be allowed to deposit the said amount in the court. By an order dated 12th July, 2002, the court directed the office to accept the said amount of Rs.1,500/-. The plaintiff thereafter filed the execution application, which was numbered as Reg. Dkt. No.6 of 2002 for execution of the decree passed in R.C.S.No. 33 of 1994 dated 31st July, 1997. In the said execution proceedings, the petitioner filed the instant application for dismissal of the proceedings since the plaintiff has not paid the balance consideration amount. The said application has been rejected by the executing court by impugned order dated 28th March, 2011. The gist of the reasoning of the executing court is that, the amount in question has been deposited by the plaintiff on 12th July, 2002 SM 3 63.cra.550.11 and therefore, the plaintiff has shown his willingness to comply with the decree. The executing court has further held that, by the said application, the defendant wants to rescind the contract, in view of the compliance of the condition of deposit of the balance amount, the applicants could not be entertained as the period of limitation for the same, was over. 4. In sofar as the order permitting the plaintiff to deposit the balance amount is concerned, the executing court was of the view that it is sufficiently seized with the power under Section 148 of the C.P.C to extend the time for deposit. As mentioned above the said order is challenged in the present petition. The learned counsel appearing for the petitioner sought to assail the said order on the ground that the order permitting the plaintiff to deposit the amount was passed without hearing the defendant that the executing court mis-construed the application filed by the defendant for setting aside the execution proceedings. Per contra, it is submitted by the learned counsel appearing for the respondent that the time has been extended up to 12th July, 2002 was known to the defendants in the year 2003, when the execution proceeding was served upon them, the defendants have not taken any exception to the said order and therefore the instant application was not maintainable. The learned counsel for the SM 4 63.cra.550.11 respondent further contended that the application has filed was rightly rejected in view of the fact that the plaintiffs have been directed to deposit the balance consideration amount by the order dated 12th July, 2002. 5. Having considered the rival contentions, in my view, there is no merit in the above petition. It is required to be noted that the order directing and allowing the plaintiff to deposit the amount of Rs.1,500/- is of 12th July, 2002. Though the said order was passed without hearing the defendants, the said fact was brought to the notice of the defendants in the year 2003 when the execution proceedings were served on the defendants. However, defendants did not take exception to the said order but filed an application for dismissal of the execution proceedings. The said application is filed for dismissal of the execution proceedings, on the ground that the plaintiff has not deposited the amount within the time stipulated by the decree. Since the plaintiff was allowed to deposit the amount by order dated 12th July, 2002, time is deemed to have been extended by the executing court. Hence the objection of the defendants that the amount was not deposited would not survive. 6. Reliance placed by the learned counsel for the SM 5 63.cra.550.11 petitioner on the judgment of the Apex Court in (1999) 4 SCC 702 in the matter of V.S. Palanichamy Chettiar Firm v/s. C. Alagappan and another, would have no application in the facts and circumstances of the present case. 7. In that view of the matter, no case for interdiction in the writ jurisdiction of this Court under the revisionary jurisdiction is made out. The Civil Revision Application is accordingly dismissed. (R. M. SAVANT, J.)