1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1229 OF 2008 WITH CIVIL APPLICATION NO.1500 OF 2008 Sachin Ashok Sarode and Anr. .... Appellants V/s. Ashabai Ashok Sarode and Ors. ..... Respondents Mr.Tushar Sonawane, for the appellants. Mr.Rameshen Dube Patil i/by Ajay Misar & Co., for respondent Nos.1 to 3. CORAM :P.B.MAJMUDAR, J. DATE : SEPTEMBER 22, 2009 P.C. 1. The appellants are the original plaintiffs of Special Civil Suit No.22 of 2008, which is pending before the learned Civil Judge, Senior Division, Niphad. The aforesaid suit has been filed by the plaintiffs for the declaration that the plaintiffs are the legal heirs of deceased Ashok Sarode along with the other defendants to get the benefits and amount of the deceased and for recovery of ½ share from the amount of provident fund and other amount, totalling to Rs.10,47,331/-. It is the case of the plaintiff that the defendant Nos.2 & 3 are the children of the said deceased through second wife. It is the case of plaintiff that the respondent No.1 is a widow of deceased, as deceased married to the said lady after the divorce of first wife and the appellants are being the children of deceased 2 Ashok through first wife, have also entitled to ½ share in the aforesaid amount which is lying with the respondent No.4 towards retiral dues. 2. The learned Trial Judge after considering the facts and circumstances of the case, came to the conclusion that the plaintiffs have no prima facie case and the defendant No.1 widow, who has been nominated by the deceased in the service record, cannot be deprived of her legitimate right. The learned Trial Judge also found that in case the suit is decreed in favour of the plaintiff, they can recover the amount and the plaintiffs can be compensated in terms of money. On the aforesaid grounds, interim injunction has been refused by the Trial Court. The said order is challenged by which Appeal from Order has been preferred. 3. At the time of hearing of this appeal from order, additional affidavit has been filed by respondent No.1 Ashabai Ashok Sarode. In her affidavit, she has stated that she may be allowed to collect Rs.10,47,331/- from respondent No.4 and if claim of the appellants/original plaintiffs is allowed for ½ amount, she will return the same to the plaintiffs, subject to her right to challenge ultimate decree passed by the Trial Court if at all decree is against her. The learned counsel for the respondent submitted that the said affidavit may be treated as an undertaking of respondent No. 1. The learned counsel for the appellants is also satisfied by the said affidavit. The affidavit filed by respondent No.1 is taken on record and 3 marked X for identification. 4. In view of the aforesaid affidavit, and in the facts and circumstances of the case, the appeal from order is disposed of by maintaining the order of the Trial Court. It is clarified that in case the plaintiff succeeds in the suit, the defendant No.1 shall repay the amount subject to her right to challenge the said decree, for which affidavit is filed on record. It is further clarified that rights and contentions of both the sides are kept open and the Trial Court may decide the suit on its own merits without being influenced by the order passed below Exh.5. Under the facts and circumstances of the case, hearing of the suit is expedited. Subject to what is stated above, appeal from order is disposed of. 5. In view of the disposal of the appeal from order, no orders are required to be passed in the civil application and the same is disposed of accordingly. ( P.B.MAJMUDAR, J.)