Willful breach of undertaking and lack of sufficient cause for restoration of appeal led to the dismissal of the appeal.

JUDGMENT :

SANDEEP K. SHINDE, J.

1. This Appeal under Order XLIII, Rule 1(r) (Bombay Amendment) of the Code of Civil Procedure, 1908 (‘CPC’ for short) challenges, the order dated 10th December, 2021, by which the learned District Judge-1, Niphad, District Nashik, refused to restore the Regular Civil Appeal No. 78 of 2012, which was dismissed for committing breach of the Undertaking to the Court, noted in the, order dated 27th April, 2011 passed in the First Appeal No. 1638 of 2006.

2 In brief, facts of the case are as under:

Appellant was a defendant in Special Civil Suit No. 41 of 2004, instituted by the respondent/plaintiff, seeking decree of specific performance of the contract dated 23rd April, 2004 qua land admeasuring 1H 83R (hereinafter called ‘Suit Land’). Suit was decreed on 1st April, 2006. Whereafter, appellant fled First Appeal No. 1638 of 2006 before this Court. It was admitted. Pending appeal, respondent/plaintiff, moved Civil Application No. 836 of 2011 seeking, order of injunction to restrain the appellant, from creating third party rights in the suit property. On 27th April, 2011, this Court passed the following order:

“Heard learned counsel for the parties. Learned counsel appearing for the respondents on instructions of the respondents states that the respondents do not intend to create third party rights in respect of the suit property till disposal of the Appeal. He further submits that permission may be granted to create a charge on the suit property for the purpose of obtaining loan. Such a blanket permission cannot be granted as of today and as and when occasion arises, it will be open for the respondents to apply to the Court for seeking permission to create a charge on the suit property. If such an application is made, it will be considered on its own merits. The statement made by learned counsel for the respondent is accepted. In view of this statement, it is not necessary to grant any relief in this application. Subject to what is observed above, application is disposed of.”

(Emphasis supplied)

Later, due to enhancement in the pecuniary jurisdiction of the District Court, the First Appeal No. 1638 of 2006 was transferred and re-numbered as Regular Civil Appeal No. 78 of 2012 in District Court at Niphad.

3. Inspite of Undertaking to the Court, appellant frstly in January, 2015 got mutated his wife’s name, Mrs. Yamunabai Shivaji Bhambare as a co-owner in the revenue records of the suit property vide Mutation Entry No. 3488. Whereafter, in breach of Undertaking, appellant permitted Dhanlaxmi Urban Co-operative Credit Society to create a charge on the suit property against the loan of Rs. 50,000/- availed by him without permission of the Court. Thus, taking note of breach of Undertaking dated 27th April, 2021 (as reproduced hereinabove), respondent-plaintiff, moved an application, below Exhibit-48, under Order 39 Rule 11(1) of the CPC, seeking dismissal of Regular Civil Appeal No. 78 of 2012.

The learned District Judge, Niphad vide order dated 30th January, 2019, allowed the application, below Exhibit-48, and as a consequence, dismissed the Regular Civil Appeal No. 78 of 2012.

4. The Order dated 30th January, 2019 was challenged by the appellant-plaintiff, simultaneously in two proceedings:

(i) Appeal from Order (St.) No. 14411/2019 and Another.

(ii) Second Appeal (St.) No. 1862/2019. On 26th November, 2019, following order was passed:

“1. Heard learned counsel for the respective parties.

2. Admit.

3. No interim relief.

4. The appellant is at liberty to adopt procedure as contemplated under Sub-Rule 11 of Order 39 of Code of Civil Procedure.”

So far as proceedings in the Appeal from Order are concerned, appellant was granted liberty to adopt proceedings contemplated under Sub-Rule (2) Rule 11 of Order 39 of CPC.

Pursuant to the said liberty, appellant moved a Miscellaneous Civil Application No. 75/2019 under Order 39 Rule 11(2) of the CPC, seeking restoration of Regular Civil Appeal No. 78/2012.

5. Learned District Judge