( 1 ) wp1140.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1140 OF 2011 Abdul Gani Khairulla Chaudhari .. Petitioner Age. 73 years, Occ. Nil, R/o. Gawali Galli, Latur, Dist. Latur At Present Gawan Chowk, Bidar, Tq. & Dist. Bidar (State of Karnataka) Versus 1. The State of Maharashtra .. Respondents Through the Collector, Latur, Dist. Latur. 2. The Special Land Acquisition Officer, M.I.W. Latur, Dist. Latur. 3. The Executive Engineer, P.W.D. Ausa Road, Latur, Tq. & Dist. Latur. Mrs.Madhaveshwari D.Thube-Mhase, Advocate for the petitioner. Mr. V.G. Shelke, A.G.P. for the respondents. CORAM : A.V. NIRGUDE, J. DATED : 20.08.2011 ORAL JUDGMENT :- 1. Rule. Rule made returnable forthwith and by consent of learned Counsels for the parties, taken up for final hearing immediately. 2. This writ petition filed under Articles 226 & 227 of the Constitution of India is challenging the order passed by the learned Judge of the Execution Court dated 13th January, 2011, awarding two months time for ( 2 ) wp1140.11 depositing amount of land acquisition award, in Special Darkhast No.2 of 2009, which was taken up by the petitioner. 3. It is common ground that the petitioner’s land acquisition reference was partly allowed and he was awarded enhanced compensation. It is also common ground that both the petitioner as well as the State of Maharashtra – respondent No.1 have filed appeals against said award in this Court and the appeals are pending. It is further common ground that respondent No.1 sought stay to the execution of the award and the Division Bench of this Court directed them to deposit at least 30% amount of the enhanced compensation in this Court as condition precedent for the stay. Respondent No.1 sought time to deposit the amount and lastly on 13th August, 2010 time of 12 weeks was granted. This time expired on 5th November, 2010. The amount was admittedly not deposited in this Court. Therefore, justifiably the petitioner moved the Special Darkhast and sought distress warrant for the entire amount of award. Such application was made on 13.12.2010, but the State of Maharashtra opposed the application and as said above, the learned Judge of the Execution Court awarded the State of Maharashtra further time of two months to deposit the amount. This order is being challenged in this writ petition. 4. The petitioner is questioning the legality of ( 3 ) wp1140.11 the impugned order on the ground that the Execution Court had no power to pass such order in the teeth of order passed by the Division Bench of this Court dated 13.08.2010 giving 12 weeks’ time to deposit 30% of the enhanced amount. I asked the learned A.G.P. as to how he would justify their impugned order and he is unable to give satisfactory answer. 5. This Court, as said above, had granted time till 5th November, 2010 to at least deposit 30% of the enhanced amount of compensation as on that day, and if such amount was not deposited within the time stipulated, there could have been no impediment in the execution of the award. The petitioner, thus, was free to execute the award and practically the execution Court had no other choice but to issue distress warrant against the State of Maharashtra. Even as on today the State of Maharashtra has effectively deposited sum of Rs. 68 lakhs and odd in the execution Court and apparently, it does not amount to compliance of the order passed by the Division Bench. The learned Judge of the Execution Court thus ought not have passed the impugned order. Such order is apparently against the judicial propriety and discipline. Besides even on facts the J.D had exhausted practically every opportunity for stopping the execution. Assuming the ld. Judge had discretion to pass the impugned order he ignored the urgency and equity of the petitioner’s case. ( 4 ) wp1140.11 I think the impugned order deserves to be set aside. The writ petition, therefore, should succeed and the rule made absolute in terms of following order :- (i) The impugned order dated 13th January, 2011, passed in Special Darkhast No. 2 of 2009, pending before the learned Jt. Civil Judge, Senior Division, Latur, is set aside. (ii) The application seeking issuance of warrant stands allowed. The learned Judge of the Execution Court shall comply with this order immediately. [A.V. NIRGUDE, J.] snk/2011/AUG11/wp1140.11ok