Rajesh H. Shukla, J.

1. The present First Appeal is filed by the appellant-purchaser being aggrieved with the impugned judgment and order in Summary Suit No. 697/2002 read with Special Darkhast No. 135/2003 dated 2.12.2011 passed by the Add. Sr. Civil Judge, Vadodara, dismissing the Application, Exh. 173.

2. Before adverting to the merits of the matter, it is required to be stated at the outset a few facts reflecting the conduct of respondent No. 1, proprietor of Mohan Dye-Chem, Shri KK Aggarwal, who appears as party-in-person. On the last occasion when the matter was heard it was agreed and accepted by respondent No. 1 Shri Aggarwal that an amount of Rs. 1,89,000/- which is claimed by him over and above the amount of Rs. 3,00,000/- may be paid towards satisfaction of his claim. However, Shri Aggarwal, who appears as party-in-person, had a second thought and requested for time and therefore the matter was adjourned to 16.12.2016 when it was heard finally on merits. Shri Aggarwal on 16.12.2016 submitted that he is not willing to accept the amount and the matter may be decided on merits and the appeal filed by the appellant may be dismissed. In fact, he has some quarrel with regard to the cost that some cost should be given and requested for time to re-think and thereafter when the matter was kept on 16.12.2016 he stated that it may be decided on merits and the appeal of the appellant may be dismissed. It is in this background the appeal has been heard on merits.

3. The background of facts, as stated by learned advocate Shri Dipen Shah for the appellant with the papers and with synopsis of the dates clearly suggest that respondent No. 1 as the proprietor of Mohan Dye-chem preferred the summary suit against respondent No. 2 Nit Hari Industries for recovery of the amount. However, as the property in question was mortgaged with Bank of Baroda, the proceedings were initiated by the bank before the Debt Recovery Tribunal. The attachment was made by DRT by order dated 1.11.2006 and the decision in the civil suit was given on 20.12.2006 (13.1.2007). Learned advocate Shri Shah therefore submitted that an application was made by the present appellant pending the proceedings before the DRT and Bank of Baroda had in exercise of its powers permitted purchase of the unit of the original borrower. The payment has been made by cheque for satisfaction of the liability of the bank and the registered sale deed has been executed by the original borrower, respondent No. 2, and the appellant. However, when it came to the notice of the appellant, the appellant made an application for release of attachment before the Civil Court by making an application, exh. 173, which came to be rejected and therefore the present First Appeal has been filed.

4. Learned advocate Shri Shah pointedly referred to the provisions of O.21 R. 58(4) and submitted that if the claim is satisfied then it may not be necessary to decide on satisfaction of the claim. He submitted that he would have stepped in the shoes of the original borrower and pursuant to the transaction in the proceedings before the DRT in the summary suit filed by respondent No. 1 Shri Aggarwal as the proprietor of Mohan Dye-chem against respondent No. 2 Nit Hari Industries he is ready and willing to satisfy the claim. It is in this background he submitted that earlier before the Court of Justice Brahmbhatt in this very proceedings of First Appeal No. 534 of 2012, the matter was about to be settled as reflected from the order of this High Court (Coram: SR Brahmbhatt, J.) dated 6.8.2014. Thereafter, it has been placed before this court and during the course of hearing as it is stated on affidavit by the appellant for payment of the dues of Rs. 3,00,000/- which has been deposited and further amount of Rs. 1,89,000/- to the satisfaction of the claim made by Shri Aggarwal he had initially agreed and accepted. However, Shri Aggarwal on second thought changed his mind and requested the court for time to think