Indira W/O Uddhao Bode And Others vs Nanaji S/O Antaram Chaudhari
2021 Latest Caselaw 9389 Bom

 4.MCA(R)522.18.odt                                      1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH : NAGPUR.

              MISC. CIVIL APPLICATION (REVIEW) NO.522/2018
                    IN SECOND APPEAL NO.120/2003(D)
                               Indira w/o Uddhao Bode and others.
                                               Vs.
                                    Nanaji Antaram Chaudhari
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 Office Notes, Office Memoranda of                              Court's or Judge's Order
 Coram, appearances, Court's Orders
 or directions and Registrar's order

        Shri R.L.Khapre, Senior Advocate with Shri R.G.Kavimandan, Advocate for
        applicants.

          CORAM :-         A.S.CHANDURKAR, J.

DATED :- JULY 16, 2021.

The applicants seek review of the judgment dated 08.06.2017 passed in Second Appeal No.120/2003.

Shri R.L.Khapre, learned Senior Advocate submitted that the suit filed by the plaintiff for specific performance was based on the agreement dated 15.10.1976. The suit as filed on 02.11.1983 was barred by limitation. This plea was taken in the written statement but the trial Court erroneously held the suit to be within limitation. Since this aspect goes to the root of the matter and the decree passed by the trial Court has now been restored in second appeal, a ground for review is made out. It is also submitted that the aspect of hardship caused to the defendants while parting with their land in question has not been considered by this Court while restoring the decree for specific performance. On these counts, it is submitted that there is an error apparent on the face of record.

Insofar as the aspect of limitation is concerned, it is true that in the written statement such plea was raised that the suit was barred by limitation. The trial Court however in paragraph 15 of its judgment held the suit to be within limitation and decreed the same. That decree was challenged by the defendants and on perusal of the judgment of the first appellate Court and especially paragraph 5 the

arguments raised by the defendants while challenging the decree for specific performance have been recorded The aspect of the suit being barred by limitation does not appear to have been argued before the first appellate Court. The appellate Court modified the decree and directed refund of the earnest amount.

In the second appeal preferred by the original plaintiff the arguments of the learned counsel for the defendants have been referred to and in paragraph 7 the contention that the suit was barred by limitation was not raised. In that view of the matter, since it is the defendants who have not pursued the aspect of bar of limitation before the first appellate Court or even in the second appeal, I do not find the same can be permitted to be raised and considered in exercise of review jurisdiction.

However on the aspect of hardship being caused to the defendants by virtue of the decree of the specific performance, issue notice to the non-applicant, returnable on 06.08.2021. The applicants in addition to regular mode of service shall serve the non- applicant by registered post.

JUDGE

Andurkar..