JUDGEMENT :- This Second Appeal No.244 of 1985 is directed against the judgement and decree passed in Regular Civil Appeal No. 389 of 1983 by the learned District Judge, Nanded on 29th October, 1985. Learned District Judge, Nanded held that due to failure of the plaintiff to deposit the balance amount of the sale consideration within the time stipulated by the trial Court, the suit, after the expiry of the given period automatically, stood dismissed. The learned District Judge, Nanded further held that the appeal thus, became infructuous and is, therefore, disposed of accordingly, in the light of the matter, without disturbing the judgement and decree of the trial Court.

2. The facts, in short, may be sum-marised, as follows :

(a) The appellant, in the second appeal, was the plaintiff in Regular Civil Suit No. 270 of 1982 and one Mr. Mahadu s/o Kerba was the defendant in the suit. Defendant-Mahadu Kerba died during the pendency of second appeal, in this Court, and his legal heirs have been brought on record. The legal heirs of deceased-Mahadu/original defendant, are respondents in the second appeal. The parties, hereinafter, are referred to their status in Regular Civil Suit No. 270 of 1982, for convenience.

(b) The plaintiff has filed suit for specific performance of contract and perpetual injunction, in respect of land Gat No. 136, admeasuring 4 acres 20 gunthas, situated at village Dabhad, Taluka and District Nanded, against the defendant. After recording evidence, in the suit, the learned 2nd Joint Civil Judge, Junior Division, Nanded decreed the suit by the judgement and decree passed on 28th October, 1983. The trial Court, in the operative part of the judgement Cl. (I), ordered that the plaintiff should deposit the remaining amount of consideration Rs. 6,100/- within three months from the date of the order and after depositing the money, the defendant should execute the sale deed in respect of the suit property. In Cl. (II) the trial Court ordered that, in case of failure on the part of the plaintiff to deposit the amount, as per the order Cl. (I), within stipulated time, the suit of specific performance of contract shall automatically stand dismissed. In Cl. (III) the trial Court directed the plaintiff and defendant to bear equal expenses of registration of the sale deed. In case of failure, on the part of the defendant to share the expenses, the plaintiff was conferred every right to recover the same from the defendant. By Cl. (IV), the defendant was directed to execute the sale deed in respect of suit filed, within a month and in case of failure, on the part of the defendant, it was directed to be executed through Court. As per Cl. (V), the plaintiff was permitted to recover the notice charges of Rs. 35/- from the defendant. Clauses (VI) and (VII) of the operative part of the judgement/decree, the trial Court restrained the defendant from causing obstruction in peaceful possession of the suit field of the plaintiff. By Cl. (VII) the defendant was to pay entire costs of the suit to the plaintiff and was further directed to bear his own costs.

(c) Regular Civil Appeal No. 389 of 1983 was filed by the original defendant-deceased-Mahadu on 7th December, 1983, being aggrieved by the judgement and decree passed by the trial Court in Regular Civil Suit No. 270 of 1982. The plaintiff-Hari filed an application at Exhibit 10 in Regular Civil Appeal No. 389 of 1983 on 9th February, 1984. In this application, Exhibit 10, it was contended by the plaintiff that his elder brother was suffering from sickness. The entire family of the plaintiff and his brother was reeling under the sickness of his brother. The plaintiff, therefore, could not deposit the balance of the consideration amount to the tune of Rs. 6,100/- in pursuance of the decree passed by the trial Court in Regular Civil Suit No. 270 of 1982. The plaintiff, by the application Exhibit 10, sought extension of 12-13 days time, since said deposit was delayed by that time. Ultima

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