1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8043 OF 2010 Gajanan Hanumant Kulkarni since deceased through L.Rs ...Petitioners Versus Maruti Sakharam Sakpal & Others ...Respondents Mr.N.V.Walawalkar, Sr.Advocate i/b.N.V.Gangal for the Petitioner Mr.M.L.More for the Respondent Nos.1 to 5 CORAM:- R.Y.GANOO, J. DATED:- 13th OCTOBER, 2011. P.C. 1. The petitioners are the original defendant Nos.1A and 1B in suit filed by the respondent being Regular Civil Suit No.974 of 2006, presently pending on the file of Civil Judge, Junior Division, Pune. Two issues came to be framed on 23.3.2009. Those issues were framed on the basis of the pleadings before the said Court. It is noted that at a later point of time i.e. in August 2010 the petitioners filed application under Order 14 Rule 5 of C.P.C.. That application 2 came to be rejected by order dated 1.9.2010 passed by the learned trial Judge. Against this order dated 1.9.2010, the petitioners have approached this Court. 2. After hearing learned Advocates on both sides, I am inclined to observe that the petitioner thought it fit to pray to the court to frame as many as 9 issues which are set out at paragraph 4 of the application for recasting of issues. The learned trial Judge considered the contentions of the petitioners and the respondents as regards framing of additional issue and came to the conclusion that the issues which were already framed would be proper and the issues suggested by the petitioners do not arise on the basis of the pleadings. In addition to the aforesaid finding, it was also recorded by the learned Judge that in the past certain assignment of decree was made and the present petitioners accepted the assignment of the said decree and on the basis of that following lines were made in the impugned order. “The defendant in draft issue have disclosed the issue about enforceability about the alleged assignment by late Mr. Bhikaji Taware and about legal feasibility of order of assignment when first order accepting assignment of decree is in force and 3 which is not set aside” 3. Another comment was made practically at the end of the order. That is as follows “Deciding the Deed of Assignment dated 14.12.1982 by the competent court”. Learned Senior Advocate Mr. Walawalkar, appearing on behalf of the petitioners contended that in the Spl. Darkhast Proceeding No.55 of 2003 which was being entertained by the learned Civil Judge Senior Division Pune, an order came to be passed against the petitioners on 29.9.2004. Learned Senior Advocate Mr. Walawalkar pointed out the said order and submitted that the said order was passed without hearing the present petitioners and that the said order was considered by the learned Judge while rejecting the application. Learned Senior Advocate Mr. Walawalkar submitted that the petitioners have already filed application before the learned Civil Judge, Senior Division, who has passed the Order dated 29.9.2004 seeking to revoke the said order as the said order was passed behind the back of the petitioners. According to the learned Senior Advocate for the petitioners, as the order was passed in the said Darkhast on 29.9.2004 behind the back of the petitioners, the learned Civil Judge, Junior Division, who passed the order on 4 1.9.2010 ought not to have relied upon the same. According to him on account of the expressions quoted above fate of the petitioners in the Execution Proceeding Special Darkhast No.55 of 2003 us decided. 4. I have considered the submission of learned Senior Advocate Mr. Walawalkar. In reply to the submission, of learned Senior Advocate Mr. Walawalkar learned Advocate Mr. More submitted that the learned Joint Civil Judge, Junior Division, Pune was justified in making the said observation as the learned Judge was required to consider feasibility of framing of each and every issue as prayed by the petitioners. 5. Having understood the nature of the controversy, I am inclined to observe that by the impugned order the learned Judge has rejected the request for framing of additional issues. The final effect of the said order is request for framing additional issue is declined. Certain observations, according to the learned Senior Advocate for the petitioners ought not to have been made. Looking to the controversy as regards need to recast issues I hold that so far as order passed so as 5 to reject the request to recast issues no fault can be found. The observations quoted above would not come in the way of petitioners pressing recovation of order passed in Special Darkhast No.55 of 2003 as also attending the suit, as I am inclined to treat application for recasting of issues as an interim proceeding and not an application giving finality to the rights of any of the parties in the above suit. Subject to the aforesaid clarification, I hold that no interference is required in the impugned order and petition is disposed of accordingly with no order as to costs. (R.Y.GANOO, J.)