Nitin Bajranglal Malu And Anr vs Mustafakhan Yusufkhan Pathan Died Thr ...
2023 Latest Caselaw 11996 Bom

Bombay High Court

Nitin Bajranglal Malu And Anr vs Mustafakhan Yusufkhan Pathan Died Thr ... on 1 December, 2023

Author: Vibha Kankanwadi

Bench: Vibha Kankanwadi

2023:BHC-AUG:25114-DB


                                                       {1}                  911-CA-14331-2023

                             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                        BENCH AT AURANGABAD

                               CIVIL APPLICATION NO.14331 OF 2023
                      IN FA/3595/2022 WITH FA/3595/2022 WITH FA/3663/2022

                 Nitin Bajranglal Malu And Another                       ...Applicants

                          Versus

                 Mustafakhan Yusufkhan Pathan Died
                 Through Legal Heirs Bashidkhan M Pathan
                 And Others                                              ...Respondents

                 Mr. S.V. Dixit, Advocate for the applicants.
                 Mr. S.S. Manale, Advocate for the respondents.
                                                 .......

                                               CORAM : SMT. VIBHA KANKANWADI AND

                                                         ABHAY S. WAGHWASE, JJ.

                                                DATE    : 1st DECEMBER, 2023

                 ORDER :

1. Issue notice to the respondents.

2. Mr. Satish Manale, learned Advocate waives service

of notice for respondents.

3. The present application has been filed for withdrawal

of First Appeal No. 3595/2022. After hearing both sides what

could be gathered is that the present application can be termed

under Order XXIII Rule 1 of CPC which has to be made

applicable to the appeals also, since appeal is in continuation of

Bhagyawant Punde

{2} 911-CA-14331-2023

of the suit. Here, the suit that was filed by present

applicants/original plaintiffs i.e. Special Civil Suit No. 99/2011

was for specific performance of the contract and in the

alternative for the refund of earnest amount together with

interest. By judgment and decree, learned 3rd Joint Civil Judge,

Senior Division, Latur, decreed the alternate prayer on

02.09.2022, directing the defendants/respondents to pay

amount of Rs.10,00,000/- to the plaintiffs with simple interest at

the rate of 6% from 11.01.2011 till realization of decreetal

amount. Thus, it can be seen that the main prayer regarding

specific performance of the contract was refused. The present

applicants/appellants had challenged the said refusal of the main

prayer in the appeal thereby they appear to be satisfied with the

alternate prayer that has been granted in their favour. Though it

appears that present respondents have filed First Appeal No.

3663/2022 to challenge the said alternate prayer granted in the

said judgment and decree and it is still pending, in view of this

application that the appellants did not want to prosecute the

appeal further and they want to abandon their prayer for specific

performance, application stands allowed and disposed of and in

consequence thereof, First Appeal No. 3595/2022 stands

disposed of as withdrawn.

 Bhagyawant Punde





                                      {3}                  911-CA-14331-2023

4. Court fees refund be given as per rules. Decree be

drawn accordingly.

 [ABHAY S. WAGHWASE]                       [SMT. VIBHA KANKANWADI]
       JUDGE                                         JUDGE




 Bhagyawant Punde