1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 5218/2004 WITH CIVIL APPLICATION NO. 359/2008 Sanjay Mahadeo Katyarmal ..vs.. Sheikh Baba Sheikh Kamruddin and anr. ---------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order ---------------------------------------------------------------------------------------------------- CORAM:- R. V. MORE, J. DATED :- 22 nd January, 2008. 1. Heard Mr. Khajanchi, learned counsel for the petitioner, Mr. Kilor, Advocate for respondent Nos. 1 and 2, Mr. Deshpande, Advocate for respondent No. 3. 2. The Civil Application No. 927/2007 was taken out by respondent No. 1 for disposal of present writ petition and for permission to withdraw the amount deposited by Forest Department i.e. respondent No. 3 in this Court. This Court disposed of this Civil Application on 02.04.2007, the Court observed in para No. 2 of the order that the parties are unanimous on the point that the petition can be finally disposed of and, therefore, the Court proposed to dispose of 2 the present writ petition. The Court in para No. 1 on page No. 3 also observed that it is necessary to dispose of the writ petition granting liberty to the petitioner and respondent No. 1 in certain eventualities. Consequently, liberty was given to the petitioner and respondent No. 1 to approach the Civil Court for getting their right in the sale proceeds decided by the Civil Court. The Court also passed the order that if the petitioner approaches the Civil Court within a period of three months in that event the proposed plaintiff would apply to this Court for transfer of the amount of sale proceeds deposited in this Court to the Court where the suit is filed. The Court further observed that if the suit is not filed within a period of three months from the date of order, respondent No. 1 is entitled to apply to this Court for withdrawal of the amount and the said application can be contested by either parties. 3. Mr. Khajanchi, learned counsel for the petitioner submits that he has already filed Regular Civil Suit No. 180/2007 in the Court of Civil Judge Senior Division, Chandrapur which is made over to 5th Jt. Civil Judge Junior 3 Division, Chandrapur. Admittedly, the suit is filed within a period of three months from 02.04.2007 on which date the learned Judge passed the order, therefore, the petitioner has filed Civil Application No. 359/2008 for transfer of amount which is deposited by respondent No. 3 in this Court. 4. After hearing both the sides, I am of the opinion that the petition is already worked out by order dated 02.04.2007. This Court wanted to dispose of the petition itself. If, the order passed on 02.04.2007 is perused, it is seen that the petition itself is disposed of and nothing survives. Even the action is taken by the petitioner in pursuance of the last paragraph of the order. Therefore, the rights between the petitioner and respondent Nos. 1 and 2 will be decided in the aforesaid suit filed by the petitioner in the Civil Court. 5. So far as the relief claimed in the Civil Application No. 359/2008 is concerned, I am of the opinion that the counsel for respondent Nos. 1 and 2 or respondent No. 3 are not entitled to oppose this civil application. In the order dated 02.04.2007, it is made unequivocally clear that if the suit is filed by the 4 petitioner in Civil Court within a period of three months in that case the petitioner, as a matter of right, can claim transfer of the amount deposited by respondent No. 3 in this Court to the Civil Court where the suit is filed. 6. The learned counsel for respondent Nos. 1 and 2 submits that respondent No. 1 has died and his legal heirs are required to be brought on the record of the petition. However, no fruitful purpose would be served by bringing legal heirs of respondent No.1 on record since Application No. 359/2008 is filed by the petitioner in pursuance of the observations of this Court in the order dated 02.04.2007 and in view of these observations the amount deposited in this Court by respondent No. 3 ought to be transferred to the Civil Court at Chandrapur since the said suit is filed within a period of three months. Needless to mention that the petitioner can apply to the Civil Court at Chandrapur for bringing legal heirs of deceased respondent No. 1 on record who is defendant No. 1 in the Civil Suit. The legal heirs of respondent No. 1, if brought on the record, as well as respondent No. 2 are entiteld to make 5 appropriate application for withdrawal of the money which will be transferred to the Civil Court in pursuance of the present order. Of course, the petitioner/plaintiff is entitled to contest the same. 7. In view of above, I pass the following order:- (i) The amount of Rs. 5,12,253/- (Rs. Five Lacs Twelve Thousand Two Hundred and Fifty Three Only) deposited by respondent No. 3 in this Court is directed to be transferred to the Court of Civil Judge Junior Division Chandrapur where Regular Civil Suit No. 180/2007 filed by the petitioner against the respondents pending. (ii) Civil Application No. 359/2008 and Writ Petition No. 5218/2004 stand disposed of with no order as to costs. JUDGE kahale