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Pursuant to the notice issued in newspaper, 10 sealed packets were received from the members of the public. By an order dated 24 th November, 2010, this court declared defendant nos.1(b) and 1(c ) as highest bidder and one Mr. Ashish Mohite was treated as second highest bidder.

6. By an order dated 14th December, 2010 passed in the execution application, this court directed defendant nos. 1(b) and 1(c ) to deposit Rs.2 crores (out of Rs.4 crores) on or before 5th February, 2011 being 50% of the total consideration payable by the defendant nos. 1(b) and 1(c ) to the plaintiff for buying plaintiff's share. Defendant nos. 1(b) and 1(c ) challenged the said order on 14th December, 2010 before the Division Bench by filing appeal (L) No. 27 of 2011. By an order dated 31st January, 2011, Division Bench of this Court extended time to deposit the said amount of Rs.2 crores. Rs. 1 crores was directed to be deposited on or before 7th February, 2011 and remaining amount was directed to be deposited on or before 21st February, 2011. Defendant nos. 1(b) and 1(c ) however did not deposit the km EXA539.12 said amount. By an order dated 1st March, 2011, this court gave an opportunity to the second highest bidder I.e. Mr.Ashish Mohite to consider on his bid. Mr.Ashish Mohite accepted to deposit Rs.Seven crores within the time specified. Though extension was granted to Mr.Ashish Mohite to deposit the said amount, Mr.Ashish Mohite did not deposit any amount in this court. On 19 th June, 2013, the plaintiff filed an affidavit in execution application contending that in view of the default committed by defendant nos. 1(b) and 1(c ) and Mr.Ashish Mohite and in view of the failure of the parties to find a common developer/purchaser to develop/purchase the suit property within the time stipulated, the chamber summons No. 372 of 2009 stood operative and is made absolute in terms of prayers (b), (c ) and (d) of the Chamber Summons No. 372 of 2009. It is the case of the plaintiff that defendants are delaying the execution of the decree and thus seeks further order in compliance with prayer clauses (b), (c ) and (d) of the Chamber Summons. This application is opposed by defendant nos. 1(b) and 1(c ) by filing affidavit in reply.

16. It is submitted by Mr.Colabawala that this court has already taken a view that the said society had lost its original characteristics as a society of a backward class persons in view of compliances made on 16 th August, 1949 onwards and is open for all irrespective of caste and creed. It is submitted that in view of the consent terms arrived at between the parties for sale of the property, society is not concerned with outcome of this proceedings. Any member of public who would purchase the property would be governed by the rules and bye-laws of the society. It is not necessary to issue any notice upon the society and their presence is not required for determination of the issue involved in this proceedings in any manner whatsoever. Mr.Colabawala invited my attention to the consent terms filed between the parties, various orders passed by this court in terms of the consent terms and in chamber summons. By an order dated 4 th October, 2010, this court accepted the request made by both parties that property be sold by the members of the public by giving advertisement in the newspaper and directed parties to take steps accordingly. Defendants were also permitted to put therein offer for the purpose of buying out the share of the plaintiff. It was made clear that once the person who was going to purchase the property as the highest bidder was final, km EXA539.12 further steps could be taken subject to orders from this court. Matter was directed to be taken on board on 18th November, 2010 to enable the Prothonotary and Senior Master to produce all the sealed envelops so as to decide as to who was highest bidder. Chamber Summons was disposed of by the said order. It is submitted that since defendants committed default in making payment of the bid amount, this court declared second highest bidder as successful bidder. Even second bidder did not deposit the amount. Defendants as well as second highest bidder was given extension of time to deposit the amount but failed to deposit inspite of extension. Learned counsel also invited my attention that defendants cannot be allowed to raise any issue about issuance of notice to the society or to divide the property by metes and bounds at this stage. In view of the failutre on the part of the auction purchaser and the defendants to purchase the property, the suit property has to be disposed of by auction.

27. The execution application appeared on board before this court on 1st March, 2011. Defendant nos. 1(b) and 1(c) informed the court that they were not in a position to comply with various terms as regards deposit of money. By an order passed on 1st March, 2011, this court treated the second highest bidder Mr.Ashish Mohite to be the successful bidder and directed him to deposit the total consideration of Rs. 7 crores in three installments. This court passed a detailed order for depositing the entire consideration and for transfer of the property in favour of the second highest bidder. This court adjourned the execution km EXA539.12 application to 25th April, 2011 to report to the Court the progress of the matter and to be shown in the column 'For Directions'.

28. The matter was thereafter taken on board on mentioning by this court on 21 st March, 2011. This court granted extension of time to the second highest bidder to deposit the amount. This court made it clear that if the amount was not so deposited, the consequences as provided in the order dated 1st March, 2011 would follow. It is not in dispute that the said second highest bidder did not deposit the amount as directed and committed default. On perusal of the said order, it is clear that the execution application filed by the applicant was on board from time to time after disposal of the Chamber Summons No. 155 of 2010 by this court on 4 th October, 2010. The said execution application filed by the applicant is still pending. In my view, affidavit filed by the applicant to bring these subsequent facts on record and to seek an order for issuance of warrant of sale is thus maintainable. Defendant nos. 1(b) and 1(c) never raised any objection as to how further directions could be issued by this court on the ground that execution application itself was not maintainable as the suit was not finally decreed or on the ground that no such direction could be issued on oral application of either party.