- 1 - ca708.sa.1414sathe,j rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION CIVIL APPLICATION NO. 708 OF 2011 in SECOND APPEAL NO.1414 OF 2004 Shri Ajij Habib Bhayani .. Applicant vs 1. Shri Dnyaneshwar Ganpat Tathe & anr.. Respondents Mr.S.S.Patwardhan for Applicant Mr.Vivek Salunkhe i.b.Mr. P.B.Shah for Respondents CORAM: GIRISH GODBOLE, J DATE: 8t July 2011 P.C. 1. This Civil Application has been filed by the original plaintiff in Regular Civil Suit No.172 of 1996 who was Respondent No.1 in Civil Appeal No.139 of 1998 decided by the Learned 4th Additional District Judge, Pandharpur by Judgment and Order dated 8.7.2002 which was the Judgment against which the Second Appeal was filed. It appears that original Defendant No.3 Pandharpur Municipal Council which was impleaded as Respondent No.2 in Civil Appeal No.139 of 1998 was not impleaded as party- Respondent in the Second Appeal. - 2 - ca708.sa.1414sathe,j 2. Second Appeal was disposed by the learned Single Judge of this Court (Justice S.R.Sathye) by an order dated 9.8.2007 which reads thus : 1. Heard the learned advocate for the appellant as well as for the respondent. 2.The learned advocate for the respondent submits that the decree is in fact executed and that too by the consent of the parties. 3. As such, the appeal has become become infructuous, and the same is disposed of accordingly. 3. This Civil Application is thereafter filed by the original plaintiff seeking correction in the said order dated 9.8.2007 for substitution of the words executed by the word passed in para 2 of the said of the order. 4. At the time of hearing of this Civil Application, Advocate for the Applicant and Respondents have agreed that order dated 9.8.2007 in fact proceeds on an erroneous assumption that the - 3 - ca708.sa.1414sathe,j decree is executed. Mr.Patwardhan Advocate for the Applicant submits that on reading of para 13 and 14 of the Judgment of the District Court, the Applicant wanted to contend that in fact the decree of the Appellate Court was passed by recording consent of the Advocates. This submission is however, disputed by Advocate for the Respondents in this Civil Application. 5. Without going into the controversy whether the Judgment of the District Court is passed by consent of the Advocates or not, since Advocates for the Applicant and Respondents agree that order dated 9.8.2007 disposing off the Second Appeal proceeds on a factually incorrect assumption, it is necessary to recall the said order and restore the Second Appeal to file for being heard for admission. Hence, by consent of the Advocates for the Applicant and Respondents, earlier order dated 9.8.2007 passed in Second Appeal No.1414 of 2004 is recalled. GIRISH GODBOLE, J - 4 - ca708.sa.1414sathe,j