abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1860 OF 2008 IN FIRST APPEAL NO. 272 OF 2006 Ijaz Ahmed Khan .. Applicant V/s Akbarali Suleman Khan & Ors. .. Respondents Mr.G.S. Godbole i/b .J. Singh & Co. for the applicant. Mr.A.S.H. Khan for the respondents. CORAM : D.G. KARNIK, J. DATE : 11TH NOVEMBER 2008 P.C. P.C. P.C. : 1. Heard. 2. The applicant is the original defendant no.3 in the suit. He has prayed for withdrawal of half the amount lying with the Court Receiver which has been deposited by respondents nos.1A to 1G in this appeal. The application is opposed by respondents nos.1B to 1G and respondent no.4. Other respondents are absent when - 2 - called. 3. Counsel for the applicant submits that the applicant has share in the property and apart from being defendant no.3 he has been brought on record as heir and legal representative of original defendant no.2. Original defendant no.2 was entitled to half share in the property and therefore the amount of income from the property be paid to him at least to the extent of 50% share of the defendant no.2. 4. It may be noted that in the suit neither original defendant no.2 nor the present applicant, who was original defendant no.3, had made any counter-claim. Counsel for respondents nos.1B to 1G points out that in fact the applicant and the original defendant no.2 had not even filed a written statement in the suit. Counsel submitted that being defendants who had not made any counter-claim, they were not entitled to any relief in the suit and therefore they cannot apply for withdrawal of the income received from the property. 5. Mr.Godbole, learned counsel for the applicant-defendant no.3 submitted that the plaintiff had filed the suit not only for himself but for the benefit of the defendants nos.2 to 4, as such the defendants must be deemed to be in the position of the - 3 - plaintiff and they were joined as formal defendants and they supported the plaintiff. 6. Be that as it may. One thing is clear that the suit of the plaintiff has been dismissed and the claim of the plaintiff for a share in the property has been dismissed. That being so, prima facie, neither the plaintiff nor defendants nos.2 to 4 are entitled to any interim relief of payment. 7. It may be noted that during the pendency of the appeal, the present applicant-defendant no.3 was initially permitted to withdraw a sum of Rs.2,45,580/-. Further more, by an interim order passed in this civil application, he was permitted to withdraw a further sum of Rs.1,50,000/-. Thus, the defendant no.3 has so far received nearly Rs.4,00,000/-. 8. Mr.Godbole submitted that the defendant no.3 is a rickshaw driver and his income is not sufficient for his maintenance. That is all the more reason why he be not paid further money. He has already received Rs.4,00,000/- without any security. If the judgment of the trial court is confirmed, he would be required to repay the amount of Rs.4,00,000/- and it would be extremely difficult for respondents nos.1B to 1G to recover the said money as it has been collected by the - 4 - defendant no.3 without security. Paying any more amount at this stage would add to the difficulties of respondents to recover the money if they succeed. In my view, it would not be appropriate to permit the defendant no.3 to withdraw more money from the receiver. 9. Mr.Godbole, at this stage, submits that at least Rs.1,50,000/-, which had been allowed to be withdrawn by an interim order, be protected and the present applicant may not be directed to repay the same forthwith. The request is reasonable and needs to be granted especially because the amount was withdrawn by an order of this Court. 10. In the circumstances, I pass the following order:- (a) The application is dismissed. However, the amount of Rs.1,50,000/- withdrawn by the applicant under the interim order need not be repaid by him till the disposal of the appeal. (b) Civil application is disposed of. (D.G. KARNIK, J.)