JOTI SIDU BHOSALE Vs. HAUSABAI MUKINDA CHAVAN

JUDGEMENT

(1.) THIS Petition is directed against the Order dated 20th September, 1994 whereby the trial court has rejected the Regular Darkhast application moved by the Decree holder for execution of the decree on the ground that the decree holder has failed to comply with the directions of the District Court given in Judgment dated 31st October, 1988.

(2.) THE Petitioner had filed a suit which was numbered as Regular Civil Suit No.256 of 1978 against the Respondent for specific performance of an Agreement for Sale of property identified under Block No.435 admeasuring 1 acre, 12 gunthas and 53 ares of Village Nimsod, Tal. Khanapur. The said suit was decreed by Judgment and Decree dated 25th August, 1983 the trial court ordered that the Petitioner herein would be entitled to get executed the Sale Deed as per the agreement of sale dated 28th March 1974 if he obtains permission for sale under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 within one year from the order or within such time as the Court may extend. The trial Court further ordered that in the event the Petitioner fails to obtain permission, Respondent would be entitled to get possession of the suit property if she deposits an amount of Rs.2,500/- in Court and until such payment the Petitioner would be entitled to continue to be in possession of the suit property.

(3.) THE Respondent aggrieved by the Judgment preferred two Appeals being Regular Civil Appeal No. 410 of 1983 and Regular Civil Appeal No.411 of 1983. The Appellate Court held that the Agreement dated 28th March 1974 was not void whether the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act as contended by the Appellant. The Appellate Court further held that the Agreement dated 28th March 1974 was not by way of security for the loan taken. This was to answer the plea raised to attract the provisions of the Bombay Agricultural Debt Relief Act, 1975. The Appellate Court further held that the Respondent was entitled to specific performance of the agreement and that the Appellant before it was not entitled to possession of the suit property. The Appellate Court further observed in the body of the Judgment that though the Respondent was entitled to specific performance yet a condition ought to be imposed that the Respondent should obtain necessary permission, if required, within one month from the date of the decision in appeal. Thereafter the Appellate Court passed the impugned order and in it observed as under: