1 CA7564/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Civil Application No. 7564 of 2011 in WRIT PETITION NO. 1324 OF 2011 1 Sudam s/o Bandhu Patil, Age 74 years, Occupation Agriculture, Resident of Elde, Taluka Nizar, District Surat (Gujrath) Applicants (Respondents in writ petition) 2 Ratilal Damu Patil, Age 56 years, Occupation Agriculture, Resident of village Kothali, Taluka and District Nandurbar 3 Dilip Damu Patil, Age 53 years, Occupation Agriculture, Resident of as above 4 Mahendra Damu Patil, Age 43 years, Occupation Agriculture, Resident of as above 5 Motanbai w/o Vasant Patil, Age 46 years, Occupation Agriculture, Resident of Velavad, Taluka and District Nandurbar 6 Shantabai w/o Ramesh Patil, Age 43 years, Occupation Agriculture, Resident of Elde, Tauka Nizar, District Surat (Tapi), Gujrath V E R S U S Gopal Ganesh Patil, Age 76 years, Occupation Agriculture, Resident of village Kothali, Taluka and District Nandurbar Respondent (Petitioner in writ petition) Mr. J.R. Shah, Advocate for the applicants/respondents in writ petition Mr. R.R. Mantri, Advocate for the respondent/petitioner in writ petition CORAM : A.V. NIRGUDE, J. DATED : 1st July, 2011 ORAL ORDER : Facts leading to this writ petition are as under : 1. The respondent (Petitioner in writ petition) filed Regular Civil Suit No. 85 of 1981 in the Court of Civil Judge, Junior Division, Nandurbar, for specific performance of contract etc. The agreement was executed by applicant No. 1 (respondent No.1 in writ petition), but his brothers were also 2 CA7564/2011 added as defendants to the litigation. Applicant No. 1 (respondent No. 1 in writ petition) took a defence that since the property belonged to joint family, he could not have agreed to sell the same. One Damu became party to the suit and asserted that he was cultivating the land as tenant. The Courts below held that Damu could not prove his possession and cultivation. The suit was decreed as against other respondents including applicant No. 1 (respondent No. 1 in writ petition). Applicant No. 1 (respondent No. 1 in writ petition) alone filed first appeal before the learned District Judge. Damu died during pendency of the first appeal. Applicant No. 1 (respondent No. 1 in writ petition) took no steps to revive the appeal as against the legal representatives of Damu, and so, due to death of Damu, the appeal was abated as against him. The first appeal was dismissed. 2. Applicant No. 1 (respondent No. 1 in writ petition) filed second appeal before this Court, but the same was also dismissed long back in November, 2009. In March, 2010, the respondent (petitioner in writ petition) initiated execution. In April, 2010, applicants No. 2 to 6 (respondent Nos. 2 to 6 in writ petition), who are legal representatives of deceased Damu, filed objection and again asserted that they are claiming through the tenant etc. The execution Court rejected his objection. Applicants No. 2 to 6 (respondent Nos. 2 to 6 in writ petition) filed Appeal No. 23 of 2010 before the District Court and sought interim relief for stay to the execution of the decree. The learned District Judge passed the impugned order staying the execution of the decree. As against this, the present writ petition is filed. 3. I am aware that the interim application filed in Appeal No. 23 of 2010 was opposed with a detail say and a rather long order is passed by the learned District Judge holding that he would not go into details of the case, but would stay the execution pending the disposal of the appeal. He opined 3 CA7564/2011 that though applicant Nos. 2 to 6 (respondent Nos. 2 to 6 in writ petition) can be said to be strangers to the decree, they should nonetheless be heard as to why their possession should not be disturbed. He directed them to deposit surety of Rs.10,000/- as condition precedent for passing the impugned order. 4. On 15th February, 2011, the respondent (petitioner in writ petition) filed this petition and the Court directed issuance of notices to the applicants (respondents in writ petition) including applicant Nos. 2 to 6. Admittedly, applicant Nos. 2 to 6 (respondent Nos. 2 to 6 in writ petition) were served with notices by all three possible modes, yet on 4th May, 2011, the learned Judge of this Court gave the applicants (respondents in writ petition) one more opportunity to hear and contest the writ petition. The case was then listed on 9th June, 2011, but was allowed to be circulated only on 22nd June, 2011. The learned Judge of this Court then took note of the fact that despite of service of notices, the applicants (respondents in writ petition) have not appeared before him. He also took a note that this Court had taken a lenient view and had granted them an opportunity to oppose the writ petition on merits. Yet, he noted, no one had appeared for applicants (respondents in writ petition), and so, the learned Judge held that there was no other option but to pass ad interim order in terms of prayer clause ‘D’ of the petition, which is to effect stay to the operation, implementation and effect of the impugned order of 21st January, 2011, passed by the learned District Judge staying the execution. In other words, the stay granted by the learned District Judge to the execution of the decree was vacated. 5. Today when the matter was called out, as mentioned above, Advocate Shri. J.R. Shah appeared for the applicants (respondents in writ petition). He tried to contend that the applicants engaged him only recently on 25th 4 CA7564/2011 June, 2011, and he said, soon thereafter on 29th June, 2011, he has filed this Civil Application No. 7564 of 2011 for vacating ad interim order dated 22nd June, 2011 etc. The learned Advocate appearing for the respondent (petitioner in writ petition) contended that applicant Nos. 2 to 6 (respondent Nos. 2 to 6 in writ petition) owe to the Court an explanation as to why they did not come before the Court immediately after service of the notices. Indeed, such an explanation is necessary, because the notice of this writ petition was served on all the applicants (respondents in writ petition) by all possible modes. One of the modes was service of notice on their Advocate who had appeared for them before the lower Court. As said above, the service of the notice was over before 4th May, 2011. Learned Advocate Shri J.R. Shah stated before the Court that applicant Nos. 2 to 6 (respondent Nos. 2 to 6 in writ petition) engaged him on 27th June, 2011, but this appears to be a incorrect statement. This is evident from the Vakalatnama which Shri Shah has filed before the Court. This Vakalatnama shows that the same was prepared by the learned Advocate appearing for applicant Nos. 2 to 6 (respondent Nos. 2 to 6 in the writ petition) in the lower Court. He had obtained signatures of applicant Nos. 2 to 6 (respondent Nos. 2 to 6 in the writ petition) on it way back on 17th March, 2011. This date is clearly mentioned on the Vakalatnama itself. But when Vakalatnama was filed before this Court, the date, it is seen, has been scored of to put a new date on it, which is 27th June, 2011. It is therefore clear that applicant Nos. 2 to 6 (respondent Nos. 2 to 6 in the writ petition) were aware of the writ petition since the date of service of the notice to them. They instructed their Advocate in the lower Court to engage another Advocate on the same day by signing Vakalatnama, and so, they owed an explanation this Court as to why they did not appear before the Court before 29th April, 2011. Since there 5 CA7564/2011 is no explanation, it can be inferred that applicant Nos. 2 to 6 (respondent Nos. 2 to 6 in writ petition) purposely avoided to come before the Court to delay the proceeding. They preferred to appear before the Court only after ad interim order was passed on 22nd June, 2011 and then filed this civil application. There appears no justification for setting aside the order passed by this Court on 22nd June, 2011. ORDER Civil Application No. 7564 of 2011 stands rejected. ( A.V. NIRGUDE, J. ) SRM/ca/7564/11/1/7/11ok