1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.9187 OF 2005 P.S.Ghatage ...Petitioner vs. Sadashiv Vithal Joshi & Ors. ...Respondents Mr.Umesh Mankapure for the petitioner Mr.P.R.Arjunwadkar for the respondent Nos.6 & 7. CORAM :A.S.OKA,J. DATE : MAY 3, 2010 P.C.: 1 Heard the learned counsel for the parties. The petitioner is the original Judgment Debtor no.1. The first to third respondents are the original decree holders. The challenge in this writ petition under Article 227 of the Constitution of India is to the order dated 26th October 2005 passed by the Executing Court. The 1st to 3rd respondents filed an execution application for executing the decree for mesne profit and possession. The decree for mesne profit was sought to be executed against the petitioner and 5th respondents herein. Warrant of attachment was issued in the execution application against the petitioner in the sum of Rs. 23,000/-. Another warrant of attachment was issued against the 5th respondent in the sum of Rs.31,000/-. The petitioner deposited a sum of Rs.23,000/- in the executing Court and filed pursis dated 22nd August 1999. An order was passed on 23rd August 1999 marking Darkhast as satisfied as against the petitioner. 2 It appears that the Judgment Debtor no.3 i.e the 5th respondent herein made an application before the 2 executing court raising an objection to the recovery of Rs.31,000/- from him. It was submitted that there is no prayer made by the Decree Holder for recovery of any amount from the respondent no.5 (Judgment Debtor no.3). An order was passed by the Executing Court on 11th July 2005 which is impugned in this writ petition by which warrant issued against the Judgment Debtor no.3 was set aside and a show cause notice was issued against the petitioner calling upon him to show cause as to why warrant should not be issued against him for recovery of amount of Rs.31,000/-. Further order was passed on 28th October 2005 by the Executing Court directing that Jangam warrant should be issued against the petitioner for recovery of Rs.31,000/- The challenge in this writ petition is to the order dated 28th October 2005 by which order of satisfaction of the Darkhast passed in favour of the petitioner was set aside. 3 the learned counsel for the petitioner submitted that the impugned order is not binding on the petitioner as he was not heard before passing the earlier order dated 11th July 2005. He submitted that there was no occasion for the trial Court to have recalled the earlier order dated 23rd August 2005 by which decree was marked as satisfied as against the petitioner. He pointed out that the petitioner has deposited an amount of Rs. 31,000/- with the Executing Court as directed by this Court. I have heard Shri Arjunwadkar for the respondent nos.6 and 7. The 1st to 3rd respondents who are the decree holders are duly served with the notice and none appeared for them. 4 I find that an order was passed on 23rd August 1999 marking Darkhast as satisfied against the petitioner. From the order dated 11th July 2005, it appears that the 3 petitioner was not heard before setting aside the said order. The impugned order is a consequential order directing issue of Jangam Warrant against the petitioner for recovery of a sum of Rs.31,000/-. 5 The petitioner claimed that on deposit of a sum of Rs.23,000/- he has satisfied the decree. The said contention was accepted by the Executing Court by order dated 23rd August 1999. the said order was set aside by order dated 11th July 2005. Now, the petitioner has deposited the balance amount of Rs.31,000/-. Though the order dated 11th July 2005 cannot be set aside in this writ petition, the Executing Court will have to decide whether the decree can be marked as satisfied against the petitioner on deposit of a sum of Rs.23,000/-. If after hearing the petitioner and all concerned parties including the decree holders, if the Court comes to the conclusion that the Darkhast is not satisfied, the Executing Court will have to pass an appropriate order regarding Rs.31,000/- deposited by the petitioner in terms of the interim order of this Court. 6 Hence, the petition is disposed of by passing the following order : i) Impugned order dated 28th October 2005 is quashed and set aside. ii)After hearing the petitioner and all concerned parties the Executing Court will decide as to whether decree can be marked as satisfied against the petitioner against deposit of a sum of Rs. 23,000/- on 18th August 1999. iii)If the Executing Court comes to the conclusion that the petitioner is liable to pay additional amount of Rs.31,000/-, the Court will permit the 4 Decree Holders to withdraw the said amount and will thereafter mark the decree as satisfied. iv)If the Court is of the view that the petitioner is not liable to pay a sum of Rs.31,000/-, appropriate order regarding refund of the said amount shall be passed by the Executing Court. v) It is made clear that till the adjudication is made, a sum of Rs.31,000/- will remain deposited with the Executing Court. The fresh order in terms of this order shall be passed within a period of six weeks from the date on which writ of this order is received by the Executing Court. vi)Petition is disposed of in above terms. JUDGE