SHIVAJI FAKIRA BHAMBARE Vs. DASHRATH BABURAO NAIK

JUDGEMENT

(1.) This Appeal under Order XLIII, Rule 1(r) (Bombay Amendment) of the Code of Civil Procedure, 1908 ( 'CPC ' for short) challenges, the order dtd. 10/12/2021, by which the learned District Judge-1, Niphad, District: Nashik, refused to restore the Regular Civil Appeal No.78 of 2012, which was dismissed for committing breach of the Undertaking to the Court, noted in the, order dtd. 27/4/2011 passed in the First Appeal No.1638 of 2006.

(2.) In brief, facts of the case are as under;

(3.) Inspite of Undertaking to the Court, appellant frstly in January, 2015 got mutated his wife 's name, Mrs. Yamunabai Shivaji Bhambare as a co-owner in the revenue records of the suit property vide Mutation Entry No.3488. Whereafter, in breach of Undertaking, appellant permitted Dhanlaxmi Urban Co-operative Credit Society to create a charge on the suit property against the loan of Rs.50,000.00 availed by him without permission of the Court. Thus, taking note of breach of Undertaking dtd. 27/4/2021 (as reproduced hereinabove), respondent-plaintiff, moved an application, below Exhibit-48, under Order 39 Rule 11(1) of the CPC, seeking dismissal of Regular Civil Appeal No.78 of 2012. The learned District Judge, Niphad vide order dtd. 30/1/2019, allowed the application, below Exhibit-48, and as a consequence, dismissed the Regular Civil Appeal No.78 of 2012.