1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3550 OF 2011 Bank of India ...Petitioners Versus Ramchandra H. Patil since deceased through L.Rs. Shalan & Patil & Ors. ...Respondents Mr.O.A.Das for the Petitioner Mr.Mahindra Deshmukh for the Respondents CORAM:- R.Y.GANOO, J. DATED:- 11th OCTOBER, 2011. P.C. 1. Rule. 2. Rule made returnable forthwith. 3. Learned Advocate Mr. Deshmukh is appearing for the respondents . By consent petition is taken up for hearing. 2 4. The suit filed against the petitioners being Special Civil Suit No.161 of 1999 came to be decreed by the learned Civil Judge, Senior Division, Sangli by judgment and decree dated 31.1.2007. By the said decree the claim of the original respondent no.1 to the extent of pensionary dues was granted in the counter claim which was filed by Ramchandra Hari Patil, who is no more and his heirs are before this Court as respondent nos.1a to 1d. In order to execute that part of the decree by which the counter claim of the original defendant no.1 was granted, Regular Special Darkhast No.27 of 2010 was filed. In the said application the Executing Court passed an order of attachment against the present petitioners i.e. Bank of India without recording any finding as to what amount is due and payable. The petitioners have therefore challenged order dated 19.1.2011. 5. I have heard learned Advocates on both sides. Perused the record. Surely, if the counter claim of the original defendant no.1 was granted, it was open for the original defendant no.1 and after his death to the heirs to execute that part of the decree dated 31.1.2009 as there is no challenge to the said portion of the decree. At the same time, it was wrong on the part of the learned Civil Court to pass 3 an order of attachment without ascertaining the amount which is due and payable to the judgment creditors in the said counter claim. It is on this point I am inclined to set aside the order dated 19.1.2011 and direct the learned Civil Judge Senior Division, Sangli before whom the Special Darkhast No.27 of 2010 is pending to determine the amount payable by the petitioners to the heirs of the original defendant no.1 and thereafter proceed in Special Darkhast No.27 of 2010. 6. For the reasons mentioned aforesaid, I pass the following order to dispose of this petition. ORDER i. Order dated 19.1.2011 passed by the learned Judge, Sewnior Division, Sangli, in Special Darkhast No.27 of 2010 below Exhibit 12 is set aside. ii. The learned Civil Judge, Senior Division, Sangli is directed to hear the petitioners as well as the heirs of respondents-defendant no.1 and ascertain the amount payable to he heirs of original defendant no. 4 1 as per decree dated 31.1.2007 passed at item no.4 of the said decree. After fixing the amount due and payable to the heirs of the original defendant no.1, the learned Civil Judge, Senior Division, Sangli shall proceed in Special Darkhast No.27 of 2010 in accordance with the provisions of law. There shall be no order as to costs. Iii. In view of the above Civil Application No.1058 of 2011 is disposed of accordingly. (R.Y.GANOO, J.)