ORAL JUDGMENT : - The petitioners are lessees of an open plot of land admeasuring 10700 sq. yards, situated at Vithalwadi, Nagoji Bhiku Marg, Village Ghatla, Chembur, Mumbai. On 1st June, 1969, a Leave and Licence agreement was entered into between the Petitioner and Lok Seva Education Society, the second respondent, in respect of an area admeasuring 2080 sq.yards which was an open plot of land being Survey No. 89, Hissa No.2. The case of the Second respondent is that on the basis of the Leave and Licence agreement it erected four permanent structures for a school building thereon. Another agreement was entered into on 1st November 1975 by which the petitioners granted to the second respondent a lease in respect of land admeasuring 7762.21 sq.yards of Ghatla Village, Chembur for use as a playground and for the construction of a building as mentioned in clause 9(c) of the agreement of lease. The total monthly rent agreed was 20 paise per sq.yard i.e. Rs. 1552.24. Due to a dispute between the Trustees, the society was unable to pay the rent. The Government of Maharashtra had also withheld grants -in -aid of the society. A suit for eviction was filed by the petitioners against the second respondent and the Trustees in respect of the open plot of land admeasuring 7762 sq. yards covered by the lease agreement of 1st November, 1975 on the ground of non -payment of rent. Prayer clause (a) of the suit was to the following effect:

"(a) The defendants be ordered and decreed to hand over quiet vacant and peaceful possession of the plaintiffs plot of land admeasuring 7762.81 sq. yards. As per the said agreement dated 1 -11 -1975, along with the Buildings standing thereon."

An ex parte decree came to be passed on 2nd December, 1986 by the Court of Small Causes directing the second respondent to hand over possession of the suit premises consisting of the plot of land admeasuring 7762.81 sq.yards. The society took out Misc. Notice 232 of 1987 for setting aside the ex parte decree. On 11th January, 1988, the Court of Small Causes passed a conditional order to the effect that the ex parte decree would stand set aside upon the Defendants depositing an amount of Rs. 1,56,000/ - calculated as arrears of rent up to December 1987 within a period of three months from the date of the order. Liberty was granted to the respondent to at least deposit a reasonable amount within the stipulated period and to move the Court for extension of time. However, in default of compliance of the conditional order, the notice was to stand discharged. The operative order of the Court was to the following effect:

"On the defendants depositing Rs. 1,56,000/ - calculated by way of arrears of rent upto December, 1987 within three months from the date of this order this notice will stand as made absolute. Ex parte decree dated 2 -12 -1986 will stand as set aside and in that event the suit should come on board of this Court on 29 -4 -1988.

In case the defendants deposit a reasonable amount within stipulated period and make a request to this court for extension of time and satisfy this Court about their inability to deposit the whole amount within stipulated period, this court will consider the said request.

In absence of aforesaid requirements and satisfaction of this court, in case the defendants fail to deposit the aforesaid amount within stipulated period this notice will stand as discharged, and stay will stand as vacated. "

Admittedly, the conditional order of the Court of Small Causes was not complied with. As a result, the notice for setting aside the ex parte decree stood discharged and the decree attained finality. There is no dispute about the fact that the decree was executed thereafter.

2. The decree was thereafter set in execution and on 26th April, 1988, the petitioners executed the decree. Miscellaneous Notice 351 of 1988 was taken out before the Executing Court by one M. N. Kolwankar in his capacity as a Principal and Secretary of the second resp

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