-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 35/2009 Sevakram Laman Ninave - versus- Baburao Krishnaji Madankar and others ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : JANUARY 29, 2009. Heard Shri S.S. Voditel, Advocate for appellants and Shri M.R. Johrapurkar, Advocate for respondents. The Appeal is by purchasers, after this Court granted them leave vide its order dated 14.01.2009 on Civil Application No. 8720/2008. The Lower Appellate Court had earlier decreed the suit for specific performance and in Second Appeal filed by the defendant in the suit, vide Second Appeal No. 78/1993 on 07.03.2008 this Court remanded the matter back to the Lower Appellate Court for finding out readiness and willingness of the plaintiff in relation to the date 28.04.1978. The Lower Appellate Court has accordingly applied its mind and vide judgment dated 30.06.2008 found that the plaintiff -2- established his readiness and willingness even on 28.04.1978. Advocate Shri Voditel for purchasers states that the purchasers have purchased the property without any notice of lis-pendence and he further contends that paper notice before such purchase was issued by the defendant and there was no objection. He points out that as per agreement entered into by the defendant with plaintiff [present respondent] the term was to purchase an un-encumbered property. He invites attention to provisions of Section 14[1][b] of the Specific Relief Act to state that, if the court was to enforce contract of such nature, in view of the said provision the moment property was found to be encumbered, specific performance could not have been granted. He has invited attention to consideration of this aspect by the Trial Court and according to him there is a finding that property was encumbered. Advocate Shri Johrapurkar, on other hand states that there are document vide Exh. Nos. 37, 38 and 40 on record of the Trial Court and he has produced copies thereof before me to show that there was no encumberance on property and defendant had only borrowed loan amount of Rs. 10,000/- and Bank was claiming its recovery. -3- It is to be noted that no such defence was raised by the respondent no.2 to 8 i.e. original defendants either before the Trial Court or before the Lower Appellate Court. In any case it is open to the present respondent / original plaintiff to offer to purchase even encumbered property. Section 14[1][b] does not prohibit the court from enforcing such contract if there is volition of parties. On record there is nothing to show that the respondent nos. 2 to 8 opposed the specific performance on this ground. I therefore, find that no substantial question of law arise in the appeal for consideration. Second Appeal is thus dismissed. No cost. Advocate Shri Voditel, for appellant states that the decree obtained by the present respondents / original plaintiffs should not be enforced for a period of 6 weeks, so as to enable the appellant to approach the Hon'ble Apex Court. Advocate Shri Johrapurkar, fairly gives no objection. In the circumstances, the execution and operation of the decree obtained by the present respondent no.1 [plaintiff] is stayed for a period of 6 weeks from today, and stay shall cease to operate automatically thereafter. JUDGE Rgd.