1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2017 OF 2009 1 Concept Pharmaceuticals Ltd. and another Petitioners Versus Damodhar s/o Baburao Avhad Respondent Mr.Girish Kalidasnaik Thigale, advocate for petitioners. Mr.S.S.Wagh, advocate for the Respondent. CORAM: R.M.BORDE, J. DATE : 25th March, 2010. P.C.: 1 The order passed by 5 th Joint Civil Judge, Senior Division, Aurangabad on 10.02.2009 on an application presented by petitioners herein at Exhibit-5 requesting the Court to stay proceedings of Special Darkhast till decision on the application for condonation of delay presented by petitioners herein, is subject matter of challenge in this petition. 2 It transpires that suit, being Special Civil Suit No.361/2005 came to be instituted by Respondent-original plaintiff claiming recovery of amount. The trial Court, on consideration of all the contentions raised by plaintiff, granted decree in his favour holding the plaintiff entitled to recover amount of Rs. 4,75,457.80 along with interest @ 18% p.a. in view of the judgment and decree passed on 12.09.2007. On perusal of the judgment, it appears that decree is passed in the absence of defendants. 3 It is contended by petitioners – original defendants that the 2 judgment and decree being ex parte, same is required to be set aside. It is further contended in the application for setting ex parte judgment and decree that they i.e. defendants were not property served and proceedings in the suit were taken up in their absence. There appears to be some delay in approaching the Court with request to set aside judgment and decree, and as such, separate application seeking condonation of delay was also presented. As the plaintiff was making haste for execution of decree, an application came to be presented for granting stay to the execution until decision on the application seeking condonation of delay as well as until consideration of application for setting aside ex parte decree. 4 The trial Court, while considering application at Exhibit-5/3, considering further fact that decree in question is in respect of recovery of money, directed the defendants to furnish bank guarantee for an amount to the extent of 3/4 th, whereas, defendants were further directed to deposit amount to the extent of 1/4 th before the trial Court. Said order, passed by the trial Court, imposing condition in respect of deposit of decretal amount, is subject matter of challenge in this petition. 5 Heard learned Counsel for respective parties. Perused the applications as well as impugned order. Considering nature of decree, being in respect of recovery of money, I am of the view that discretion exercised by the trial Court in directing the petitioners – original defendants to furnish bank guarantee for an amount to the extent of 3/4 th and in respect of deposit of rest of amount before trial Court is concerned, same need not be interfered with in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. 6 It is the contention of petitioners – original defendants that the Court, which has passed decree, is seized of the application tendered by 3 defendants requesting for setting aside ex parte decree as well as seeking condonation of delay in approaching the Court in presenting such an application. Until the applications presented by defendants seeking condonation of delay and for setting aside ex parte decree are dealt with by the trial Court, the amount, that would be deposited by defendants – petitioners herein, shall remain with the trial Court and shall not be disbursed in favour of decree holder. At the same time, trial Court shall expeditiously dispose of application seeking condonation of delay as well as application requesting for setting aside ex parte decree, if the former application is considered favourably. The trial Court is directed to deal with the applications and decide same as expeditiously as possible, preferably by the end of June 2010. 7 Petitioners seek three weeks’ time for deposit of 1/4 th amount, as directed by the trial Court. Time is extended by three weeks to make the deposit. On fulfillment of condition in respect of deposit of amount, interim relief, as granted by the trial Court, in the application seeking stay to the execution of decree, shall remain operative. 8 In this view of the matter, no interference is called for in the petition. Petition stands rejected. R. & P. be sent back forthwith to the concerned Court. (R.M.BORDE) JUDGE ******* adb/wp201709