1 CA 8983.2011 in WP 2112.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 8983 OF 2011 IN WRIT PETITION NO. 2112 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders CORAM :S.V. GANGAPURWALA, J. DATE :09/09/2011 PER COURT : 1. This is an application filed for withdrawal of amount of Rs. 1,25,000/- deposited by non applicant no. 2 pursuant to the order passed by this Court. 2. The present applicants had filed Spl. Civil Suit No. 31 of 2005, which came to be decreed to the extent of 1/7th share each. The present non applicant no. 2 has challenged the said Judgment and decree by filing First Appeal No. 938 of 2006. This Court in the said First Appeal had granted stay on condition of deposit of 50 % of the amount. Non applicant no. 2 only deposited an amount of Rs. 50,000/-. 3. As the order of stay was not complied, the stay stood vacated. The Court vide Order dated 26/03/2009 in 2 CA 8983.2011 in WP 2112.2010 Civil Application No. 1194 of 2009 in First Appeal No. 938 of 2006 observed about the fact that the stay stood vacated and the applicants were allowed to withdraw an amount of Rs. 50,000/- without security. 4. The present non applicant no. 2 had also filed Appeal from Order No. 91 of 2008. The said Appeal from Order was filed against the order passed by the trial Court on an application under Order XXXIX Rule 2-A of the Code of Civil Procedure. In the said Appeal from Order, the learned Single Judge of this Court in the Order dated 29/02/2009 had observed about the factual matrix and the Appeal from Order was dismissed. The Court in para no. 11 of the said order discussed about the memorandum of understanding being executed amongst the parties. It observed that the said memorandum of understanding is verified by the Registrar ( Judicial ) of this Court and also relied on the various clauses of the said memorandum of understanding while dismissing the said Appeal from Order. 5. The present Writ Petition is filed by the present non applicant no. 2 against the order passed in the executing proceedings. The executing Court had passed an order against the present non applicant no. 2 about civil imprisonment of one month and the attachment of his property. This Court had directed the present non applicant no. 2 to deposit the amount of Rs. 1,25,000/-. 3 CA 8983.2011 in WP 2112.2010 6. Mr. Adkine, the learned counsel for non applicant no. 2 contends that the decree passed by the trial Court is without jurisdiction and illegal. The applicants are not entitled for any amount. According to the learned counsel, the First Appeal is pending and the applicants are not entitled for any amount. 7. I have perused various orders passed by this Court in the First Appeal and Appeal from Order. 8. Admittedly, the Judgment and decree of the Civil Court is not stayed as on today. The stay is vacated. In pursuance thereof, in the First Appeal, the present applicants were allowed to withdraw an amount of Rs. 50,000/-. In Appeal from Order also while passing the Order dated 29/04/2009, it was observed by the learned Single Judge of this Court that the memorandum of understanding has been entered into by three ( 3 ) sisters and the present applicants are entitled to their share. 9. In light of the above, there is no impediment to allow the applicants to withdraw an amount of Rs. 1,25,000/-. But, as the dispute is pending, the said amount also requires to be secured. 10. In the result, I pass the following order : The applicants are allowed to withdraw an amount of Rs. 1,25,000/- deposited in this Court on condition that 4 CA 8983.2011 in WP 2112.2010 the applicants furnish solvent security of the like amount to the satisfaction of the Registrar. The Civil Application is disposed of. [ S.V. GANGAPURWALA, J.] KNP/CA 8983.2011 in WP 2112.2010