1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 6803 OF 2008 1 Vasant Manaji Kambale age 53 years, occ. hil r/o Saras Colony, Saras Nagar Chanurana Bk. Ahmednagar. 2 Shashikant Anandrao Hiwale age 55 years, occ. nil r/o Plot no. 27, Prakashpur Colony, Tarakpur, Ahmednagar. .. PETITIONERS VERSUS 1 Bhaskar Pandurang Hiwale Education Society Ahmednagar College Campus Station Road, Ahmednagar. 2 Center For Studies in Rural Development Institute Through its Director Shri Sudhir Devdiprasad Sharma age 60 years, occ. service r/o Ahmednagar College Campus Station Road, Ahmednagar. .. RESPONDENTS Mr. V.S. Bedre, Advocate for the petitioners. Mr. N.C. Garud, Advocate for respondent nos. 1 and 2. ===== CORAM : R. M. BORDE, J. DATE : 9th December, 2009 2 ORAL JUDGMENT : 1 Heard. 2 Rule. With the consent of the parties, the matter is taken up for final disposal at admission stage. 3 Petitioners herein / original judgment debtors are raising exception to the order passed by the executing court below exh. 17 in Special Darkhast no. 40/2006 whereby the executing court directed issuance of arrest warrant against the petitioner subject to compliance of condition in respect of deposit of subsistence allowance by the decree holder. 4 It is stated that there is decree in respect of recovery of money passed against the petitioners / judgment debtors. It is also not disputed that the first appeal raising exception to the decree passed by the trial court in respect of recovery of amount was presented before the court. However, the same has been dismissed for want of prosecution. It is stated that application for restoration of appeal was also presented and the same is pending. The fact, however, remains that there is no order of stay operative 3 in appeal raising exception to the decree passed by the trial court in respect of recovery of amount. Decree holders made attempt for causing recovery of amount from the judgment debtors however, all the attempts of the decree holders turned out to be futile, as such, respondent / decree holders were constrained to present application at exh. 17 seeking order of detention of judgment debtors in civil prison. Trial court after considering the application tendered by the decree holders directed issuance of arrest warrant against the petitioners. 5 I have perused the application as well as the impugned order passed by the executing court and heard arguments advanced by learned counsel appearing for the respective parties. Trial court does not appear to have observed the procedure as prescribed under Rule 40 Order XXI of the Code of Civil Procedure. It would not be necessary to go into the merits of the controversy raised by the parties while determining the instant writ petition as the learned counsel for the petitioner on instructions makes a statement that his client i.e. the judgment debtors would cause appearance before the executing court on 18 th December, 2009 and matter can be directed to be decided afresh. Learned counsel for the petitioner assures that the judgment debtors would personally remain present before the executing 4 court on the given date. After the judgment debtors cause their appearance before the executing court, the executing court is expected to follow the procedure prescribed under Order XXI Rule 40 of the Code of Civil Procedure and pass necessary order. In view of the statement made by learned counsel for the judgment debtors, the impugned order passed below exh. 17 in Spl. Darkhast no. 40/2006 is quashed and set aside. Trial court is directed to proceed in accordance with Rule 40 Order XXI of the Code of Civil Procedure and pass necessary orders expeditiously. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.) dyb/office/ep6803.08.odt