Bombay High Court
Kasturbai Himat Patil Power Of ... vs Lilabai S.Patil(Decd)Lrs ... on 15 September, 2022
Bench: R. G. Avachat
1021-CA-1254-2018.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO. 1254 OF 2018
IN
CIVIL APPLICATION NO. 13802 OF 2015
IN
SECOND APPEAL NO. 457 OF 2000
WITH CIVIL APPLICATION NO. 11450 OF 2022
Kasturbai Himmat Patil ... Applicant
Versus
Lilabai Sada Patil
(Since deceased) Through Her L.Rs.
1. Balkrishna Sada Patil and others ... Respondents
....
Mr. V. R. Dhorde, Advocate for applicant
Mrs. M. A. Kurkarni, Advocate for respondent Nos. 1, 2 and 4
....
CORAM : R. G. AVACHAT, J.
DATED : 15th SEPTEMBER, 2022
PER COURT :-
. Heard.
2. Civil Application No.1254 of 2018 is for restoration of
Civil Application No.13802 of 2015. For the reasons given in the
application, the same is allowed. Civil Application No.13802 of
2015 is restored.
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3. This application (CA No.13802/2015) has been moved
for correction in the judgment and decree dated 16.08.2013 passed
by this Court in Second Appeal No.457 of 2000.
4. The notice of this application was issued way back in the
month of October 2015. The application was dismissed for failure to
take steps.
5. Thereafter, application for restoration of this application
was preferred in the year 2017. The application was not supported by
affidavit. Filing of such affidavit is dispensed with. Respondent No.2
passed away on 27.08.2022. In view of this Court, the legal
representatives of deceased respondent No.2 need not be brought on
record in view of the nature of prayer made in the application.
6. Notice of respondent No.5 is awaited. This Court does not
want to serve him notice of this application since the very person had
filed pursis before the executing Court admitting the claim of the
applicant herein.
7. It was the suit for specific performance of agreement for
sale of agricultural land. The suit was dismissed by the trial Court.
The first appellate Court affirmed the judgment and decree of the
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trial Court. The plaintiff has been successful in Second Appeal. The
Second Appeal was allowed, granting decree for specific performance.
The contesting respondents had preferred Special Leave Petition
(S.L.P.) before the Hon'ble Supreme Court. They have, however, been
unsuccessful. As such, the decree for specific performance has
attained finality.
8. The decree holder put the said decree for execution. Then
it was realised that there is some mistake in the area of the suit
property. The executing Court, therefore, refused to proceed with the
execution proceeding unless mistake is corrected. Hence, the present
application has been moved.
9. For over seven years, such application is pending for one
or other reason. The copy of the plaint in Special Civil Suit No.49 of
1985 is on record. Para 1 thereof contained description of the suit
land, which is as under:
ß¼1½ ftYgk tGxkao iksV rqdMh HkMxkao iSdh ekSts ckPNsj f'kokjkrhy
'ksr losZ ua- [email protected] v o 'ksr losZ ua- [email protected] c feGwu xV ua- 133 {ks=
1 gs 95 vkj iksV [kjkc 3 vkj vkdkj :- 10&13 iSls ;kal prq%flek
iwosZl t;kckbZ Hkz- nsopan ;kaph 'ksr feGdr if'pesl n;kjke vkuank
ikVhy ;kaph 'ksr feGdr] mRrjsl Qdhjk /kuk dksGh ;kaph 'ksr feGdr
nfZ{k.ksl okeu x.kk dksGh ;kaph 'ksr feGdr ;s.ks izek.ks prq%flesrhy
'ksr feGdr R;karhy >kM >qMwi o R;krhy ,d vkaC;kps >kM R;krhy
lksGk vk.ks gDdklg gh tehu e;r fyykckbZ fgps ekydhph vkgs o
dCts&ofgokVhrhy gksrh-Þ
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10. As such, it was a suit for specific performance of
agricultural land admeasuring 1 H 98 R (95 + 3 potkharab land).
This Court, vide Judgment and order dated 16.08.2013, allowed the
Second Appeal. Clause "D" of the operative order reads thus:
"D. The defendant Nos. 1 to 4 are directed to execute the sale
deed in favour of the appellant/Kasturbai in respect of suit
property gut No.133 admeasuring 4 H 33R situated at village
Baccher, Tq. Bhadgaon, Dist. Jalgaon within a period of eight
(8) weeks from today and upon failure thereof, the
appellant/plaintiff shall be entitled to get the sale deed
executed through the process of the Court within further period
of eight (8) weeks therefrom."
11. In view of this Court, the area of the land has been
wrongly or mistakenly mentioned as 4 H 33 R instead of 1 H 98 R.
The same needs to be corrected and the same is hereby corrected in
exercise of power under Section 152 of the Code of Civil Procedure.
12. Thus, Civil application No. 13802 of 2015 is allowed in
terms of prayer clause (A) and specifically clause "D" of para 4 of the
application.
13. In view of the aforesaid order, pending civil application
No.11450 of 2022, is disposed of.
[ R. G. AVACHAT, J. ]
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SMS
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