(1) CA. 7394.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 7394 OF 2009 IN FIRST APPEAL NO. 1762 OF 2007 Shivaji S/o Vitthal Patil and ors. .. Applicants VERSUS Rambai w/o Dala Patil and others .. Respondents Mr. A.N. Nagargoje, Advocate for the applicants Mr. R.C. Patil, Advocate for the Respondent nos. 1 to 3, 6 to 8 and 10 to 11 CORAM : A.V. NIRGUDE, J. DATED : 25TH AUGUST, 2009 P.C.:- 1] The civil application is moved against the order passed by the learned Civil Judge Senior Division, Amalner, accepting the surety given by the respondents for withdrawal of the amount of compensation. 2] Background facts : . The parties were engaged in a Reference under section 30 of the Land Acquisition Act before the Reference Court. Both of them were claiming ownership of the land that was acquired. After hearing both the sides, the Reference Court held in favour of the respondents. The applicants moved this Appeal and sought stay to the effect of the award (2) CA. 7394.2009 granted in favour of the respondents. The award had allowed the respondents to withdraw the amount of the award, which was deposited in the reference court and was to the tune of Rs.1,79,504/-. . Obviously the respondents opposed this application for stay. After hearing both the sides, on 17.6.2008, this Court passed the following order in Civil Application no. 10659 of 2007:- “ Heard Shri V.J. Dixit, learned Senior Counsel instructed by Shri A.N. Nagargoje, Advocate for the applicants and Shri R.C. Patil, learned Advocate for the respondents. . The learned Counsel for the applicants states that though a reference under section 30 of the Land Acquisition Act, 1894 is decided in favour of the 1st to 11th respondents, the findings recorded by the reference Court are perverse. He pointed out that a suit for redemption of alleged mortgage filed by the said respondents has been dismissed in default and till today the suit has not been restored. . By the impugned judgment and award, compensation amount has been held payable to the said respondents. If the respondent nos. 1 to 11 are permitted to withdraw the said amount subject to furnishing adequate security for the said amount, the applicants will be adequately protected. Hence application is disposed of by passing the following order. [i] 1st to 11th respondents are permitted to withdraw the amount of Rs.1,79,504/- subject to furnishing adequate security for (3) CA. 7394.2009 the said amount to the satisfaction of the reference Court. Security shall not be accepted without hearing the applicants in this application. [ii] In the event, 1st to 11th respondents fail to furnish adequate security for the said amount within a period of four months from today, the reference Court will invest the said amount in fixed deposit in any nationalised bank and the fixed deposit will be renewed from time to time till the final disposal of the appeal. . Application is disposed of in above terms. Date : 17.06.2008 (ABHAY S.OKA), JUDGE” . The order thus, clearly puts the respondent nos. 1 to 11 to terms that they should make not only the application for withdrawal of the compensation within four months, but should also furnish adequate security for the said amount within that period. The order further contemplated, in the failure to do so the reference Court should invest the amount in fixed deposit in a nationalised bank. In view of this order, the respondents nos. 1 to 11 were under obligation to quickly make an application for withdrawal of the amount etc. 3] In August, 2008 the respondents 1 to 11 made an application, seeking withdrawal of the (4) CA. 7394.2009 amount. They assured the Court that they would furnish security as per the direction of the High Court but the application was not registered because respondents 1 to 11 had not removed the office objections raised in the said application. On 20.10.2008, the reference Court rejected the application for want of the removal of the Office objections. By that day, the period of four months had expired on 16.10.2008. 4] After 20.10.2008 the respondents 1 to 11 made further efforts and this time they succeeded in getting the Office objections removed and thereafter, their application was once again taken up for hearing vide order dated 13.11.2008. The appellants were notified of this application. The appellants opposed the application, saying that the application was time barred but the learned Judge held that since the respondents 1 to 11 had filed their application in August, 2008, which was within four months time, the application should be considered to have been filed within time. Subsequently he accepted the surety offered by respondents 1 to 11 and disbursed the amount. The final order was passed on 16.2.2009. . The question is whether the application of the respondents 1 to 11 was filed within stipulated four months time and whether they had succeeded in furnishing security within the stipulated period? (5) CA. 7394.2009 The answer to both the questions is in negative. Filing an application is one thing but filing a complete application is another. After the application was lodged on 11.8.2008, the Office took out several objections and owing to such objections the application never went before the Judicial Officer for further order, which was expected to be of issuing notice to the appellants. The respondents 1 to 11 did not take steps within time to remove the objections and taking up the matter before the Judicial Officer for passing the necessary orders. They were so much lax that in the meantime, the period of four months expired on 16.10.2008. In view of this, it can safely be held that the respondents 1 to 11 had failed to make even the application for withdrawal of the amount within four months time. In other words it can be said that filing of an incomplete application amounted to failure of filing an application. If such application was not within four months time, there was no question of furnishing security within that period. 5] Mr. R.C. Patil learned counsel appearing for the respondents invited my attention to the fact that the respondents did not stand to any benefit, if they had caused delay in processing their application and getting the necessary order passed in their favour. This argument is misleading (6) CA. 7394.2009 because the order of this Court, clearly contemplated as to what would happen if the respondents 1 to 11 failed to furnish security within four months time. The amount would then get invested as fixed deposit in a nationalised bank, which the appellants wanted to happen. It was necessary for the respondents 1 to 11 to avoid such consequences. It was therefore necessary for them to get the favourable order passed within four months time. The true spirit of the order of this Court, it seems, was not understood by the learned Judge of the reference Court. 6] So, the impugned order deserves to be set aside. The orders of the lower Court dated 16.2.2009 and 25.2.2009 stand set aside. The respondent no.2 who is the Attorney of all the respondents, shall deposit the amount back in the Reference Court, within four weeks from today. The Reference Court shall invest this amount as per the order dated 17.6.2008 of this Court within four weeks from today. 7] Civil Application is disposed of. Sd/- (A.V. NIRGUDE, J.) arp