JUDGMENT - DAGA V.C., J.:---The source of this appeal is the order passed by the City Civil Court, Bombay dated 22nd December, 1997 in Execution Application No. 696 of 1994 arising out of judgment and decree passed in Short Cause Suit No. 1548 of 1989, whereby the appellants and respondent Nos. 2 to 6 (original defendant Nos. 1 and 8) were directed to execute necessary conveyance within three months from the date of the said impugned order, failing which, the Registrar of the City Civil Court was directed to execute the required conveyance in favour of the respondent No. 1 herein; (the original plaintiff/decree holder).

THE FACTS

2.Facts giving rise to the present appeal in nutshell are as under:

The original plaintiff (respondent No. 1 herein) Mount Mary Vaikunta Co-operative Housing Society Limited, (hereinafter referred to as "plaintiff society" for short) had filed a Short Cause Suit Bearing No. 1548 of 1989 against ten defendants i.e. present appellant Nos. 1 to 3 and respondent Nos. 2 to 8. All of them are parties to this appeal. The defendant No. 9 was one of the partners of the defendant No. 10, a partnership firm. The defendant Nos. 2 to 8 are the heirs of one Late Shri Madhavdas, the original owner of the plot of land in question.

3.It was the case of the plaintiff-society that the original land/plot owner Late Madhavdas, presently represented by his heirs defendants Nos. 1 to 8, had agreed to assign the suit land to the defendant No. 9, who intended to develop the same. The defendants No. 9 put this project for development in his partnership firm, namely, the defendant No. 10. The said partnership firm, the defendant No. 10, thereafter, developed this plot of land and constructed a building and the various persons, who purchased flats in the said building, were put in possession of their respective flats sold to them. The plaintiff society was formed by the purchasers of such flats.

4.The society after its formation and registration in accordance with law filed a suit for declaration that the plaintiff-society had acquired flats in the said building with further declaration that the defendant No. 10 was liable to obtain assignment of the land from the defendant Nos. 1 to 8 and, in turn bound to convey the suit land in favour of the plaintiff-society. The plaintiff-society had also sought declaration that the said society and its members were in possession of the land and the building. Based on the pleading in the plaint and the reliefs prayed therein; the suit came to be registered. The suit summonses were issued to the respective defendants calling upon them to put their appearance and defence, if any.

5.It is not in dispute that each defendant was served with the suit summons. It is also not in dispute that none of them had appeared before the trial Court to contest the suit. It is also not in dispute that the suit came to be decreed ex parte long back in the year 1992. It is also not in dispute that none of the defendants applied for setting aside the said ex-parte decree. None of them challenged the said decree in appeal.

6.The defendant No. 10 having constructed building consisting of seven floors, with total 28 flats (residential apartments), entered into an agreement with several persons (flat purchasers) for sale of flats for the price set out in the respective agreements. The agreement with the flat purchasers i.e. the members of the plaintiff society inter alia; provided that the builders (defendant No. 10) would form a co-operative society and would only collect ground rent from the members until management of the property is handed over to the society. In the said agreement, it was further provided that after handing over the management to the society, defendant No. 10 would cease to collect the outgoings. The purchasers had also agreed to become members of the society. The builder had also agreed to get necessary assignment of the land with the building in favour of the society either directly or upon getting

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