1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.3518 of 2009 (Shailesh s/o Vinodrao Kathale v. Bank of Maharashtra and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Smt. Neeta Jog, Advocate for Petitioner. Coram : R.C. Chavan, J. Dated : 4 th September, 2009 When this petition was circulated on 20-8-2009, notice, returnable today, indicating that the petition would be taken up for final hearing and disposal at the admission stage was ordered to be issued. The said notice has been served on all the respondents. Facts, which are material for deciding this petition, are as under : Respondent No.1 – Bank of Maharashtra filed Special Civil Suit No.52 of 1998 against respondent Nos.2 to 5. The suit was decreed for a sum of Rs.3,11,054.90 against respondent Nos.2 to 5. Respondent Nos.4’s land bearing Survey No.233 of Village Belgaon was attached in execution and 1.62 hectares of that land was put to auction by the Executing Court. The petitioner was the 2 highest bidder and his bid of Rs.3,40,000/- was accepted on 29-12-2008 and he deposited a sum of Rs.85,000/- - being 25% of the bid amount. The balance was to be deposited by 13-1-2009. Respondent No.5, i.e. judgment-debtor No.4, applied for attachment of property of other judgment-debtors, bearing field Survey Nos.41 and 52. These fields were attached on 5-1-2009. Respondent 5, i.e. judgment-debtor No.4, also applied for auction of those properties belonging to judgment-debtor Nos.1 to 3 and also deposited a sum of Rs.1,00,000/- towards the decretal debt. On 13-1-2009, the petitioner applied for refund of the amount deposited considering the fact that the sale was not likely to fructify. Respondent No.5 filed an application on 31-3-2009 for release of field Survey No.233, which had been purchased by the petitioner in auction in view of the settlement and compromise between the parties. The decree-holder filed a pursis on 31-3-2009 withdrawing the execution petition in view of the compromise. In view of this compromise, on 29-4-2009, the petitioner sought refund of the amount of Rs.85,000/- deposited by him by filing an affidavit in support of his earlier application dated 13-1-2009. This application was rejected by the learned Judge of the Executing Court by his impugned order. None of the parties, i.e. neither the 3 decree-holder nor the judgment-debtors, seem to have opposed this prayer of the petitioner before the Executing Court. The order of the Executing Court does not show that any of the parties had opposed. In fact, para 3 of the impugned order shows that the process of sale of new property had commenced and the judgment-debtors, who owned field Survey No.233, had also deposited a sum of Rs. 1,00,000/- towards the decretal debt. In spite of this, the learned Judge of the Executing Court rejected this application. The learned Judge of the Executing Court should have seen that the amount deposited by an auction purchaser in execution of a decree is meant for either being paid to the decree-holder or the judgment-debtors as may be their entitlement. The learned Judge should have seen that when the amount is not at all required for the purpose of satisfaction of the decree, there is absolutely no warrant for retaining the amount and want of express provision should not have prevented the learned Trial Judge from allowing the application. Since the parties had settled the execution proceedings by compromise, nothing further remained and the petitioner was entitled to the refund of the amount. It seems that since the respondents as well as the judgment-debtors do not object to the claim of refund by the petitioner, they have 4 not cared to appear and contest the petition. In view of this, the petitioner may apply afresh to the learned Trial Judge and the learned Trial Judge shall decide the application in the light of the above observations. The petition is disposed of in above terms. Judge. pdl