Bombay High Court
Shri Jitendra S/O Punjaramji ... vs Shri Prabhakar S/O Vithalrao ... on 23 August, 2021
Bench: S. M. Modak
Order 12 cao 487-2021 in mca st 8444-2021
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL APPLICATION (CAO) NO.487/2021
IN
MISC CIVIL APPLICATION ST. NO.8444/2021
IN
SECOND APPEAL ST. NO.2789/2020
Shri Jeetendra s/o Punjaramji Bhagat,
-VS-
Shri Prabhakar s/o Vitthalrao Pandao.
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Shri A.V. Bhide, Advocate for appellant.
CORAM : S.M. MODAK, J.
DATE : AUGUST 23, 2021.
Heard Shri Bhide, learned Advocate for the appellant. The
original defendant wants to challenge the judgment dated
21/11/2018 by which the defendant was directed to execute sale-
deed. There was an appeal in filing second appeal. The appellant
filed an application for condonation of delay vide Stamp
No.279/2021.
2. The office has taken certain office objections and amongst
of that one is not filed the application for condonation of delay. The
learned Registrar (Judicial) inadvertently directed the appellant to
file an application for condonation of delay failing which the
registration stands refused.
3. In fact, neither the office nor the then learned Advocate
representing the appeal has pointed out to the office about filing of
delay condonation application. Result is refusal of registration.
Order 12 cao 487-2021 in mca st 8444-2021
4. Under these circumstances, the Court has to restore the
matter. There is delay of 173 days in filing restoration application for
restoring the delay condonation application. Reasons are convincing,
hence the following order:
a) The delay of 173 days caused in filing
restoration application is condoned;
b) The original proceedings i.e. Stamp
No.2790/2020 is restored;
c) The appellant to remove remaining office
objections within a period of two weeks;
d) The appellant is permitted to add the
number of days delay in the said application (which is
kept blank).
CIVIL APPLICATION (CAS) ST. NO.2791/2020
Heard Shri Bhide, learned Advocate for the defendant.
The First Appellate Court has reversed the decree of refund of earnest
money and instead decreed the suit by granting specific performance.
The said decree is against present appellant/defendant. It is
submitted that the execution proceedings are filed. According to him,
this is not a case wherein the agreement for sale is signed on behalf
of the minor defendant but it is a case where minor himself has
signed. The agreement was signed on 06/10/2006. The date of birth
of defendant is 12/01/1989 (as per the birth certificate of Gram
Panchayat at Exhibit-84).
2. The Trial Court has believed this certificate and dismissed
the suit. At the same time, the Trial Court has not believed the
bonafide certificate at Exhibit-50 issued by School. The date of birth
is shown as 12/01/1988.
Order 12 cao 487-2021 in mca st 8444-2021
3. Whereas the First Appellate Court has believed the
bonafide certificate and not believed the birth certificate. One more
issue is also raised about not stamping the agreement for sale fully in
view of the fact that possession was handed over. Though it is not
clear in the appeal memo. The appellant seeks liberty to amend the
appeal memo. Permission is granted.
4. In view of above submission, this Court feels that if decree
executed, the appeal will become infructuous. In view of that, stay is
granted to the execution of decree till appearance of the respondent.
5. The matter be placed after removal of the office objections
after two weeks.
JUDGE
R.S. Sahare
