Bombay High CourtWP/1544/2016dispossed offdismiss for default

M/S. Mayur Developers And Builders Through Proprietor Martin S/O. Nirmal Moresh v. Shri. Deorao S/O. Ganbaji Dongre And Others

2016-06-20Hon'Ble Shri Justice Z.A. Haq2 pages

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR WRTI PETITION NO.1544 OF 2016 (M/s Mayur Developers & Builders vs.

Deorao s/o Ganbaji Dongre and others) =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders or directions and Registrar's orders.

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CORAM

: Z.A. HAQ, J.

DATE : 20 th JUNE, 2016.

Heard Shri S.V. Tadas, learned Advocate for the petitioner-original decree holder.

The petitioner-plaintiff had filed Special Civil Suit No.723/2009 in which decree for specific performance of contract was passed on 08/07/2010.

The petitioner could not deposit the balance amount as per the decree within the stipulated time. The petitioner filed an application praying that the delay in depositing the balance amount be condoned. The executing Court has rejected this application by the impugned order.

The executing Court has repelled the submission made on behalf of the plaintiff that he could not deposit the amount within the stipulated time because of his illness. The

wp.1544.16 2/2 executing Court has recorded that the medical certificate produced by the plaintiff on record shows that he was under treatment from 01/07/2010 till 29/08/2011, however, it does not state that the plaintiff was advised bed rest or was unable to move. It is recorded that the plaintiff has not examined the Doctor/Medical Officer to substantiate his claim. It is recorded that as per the Medical Certificate, the plaintiff was declared fit on 30/08/2011, however, the application came to be filed before the executing Court on 02/03/2012.

The executing Court has also considered the provisions of Section 148 and Order V Rule 2 of the Code of Civil Procedure.

After examining the facts, documents on record and the legal position, the executing Court has rightly rejected the application filed by the plaintiff. The order passed by the executing Court is just and proper and it cannot be said that the executing Court has committed any patent illegality or there is any error of jurisdiction.

The petition is dismissed. In the circumstances, the parties to bear their own costs.

JUDGE *sdw