1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2239 OF 2010 Maharashtra Jeevan Pradhikaran. .. Petitioner Vs Shri Vijay Jagannath Indolikar. .. Respondent -- Shri A.R. Pitale for the Petitioner. Shri T.D. Deshmukh appointed as Amicus Curaie. -- CORAM : A.S.OKA, J. DATE : 4TH MAY, 2010 P.C: . Heard learned counsel appearing for the Petitioner. On the request made by the Petitioner appearing in person, Shri T.D. Deshmukh was appointed as an Amicus Curaie to espouse his cause. The learned Advocate has assisted the Court by espousing cause of the Respondent appearing in person. 2. The Respondent filed a suit against the petitioner. The major part of the litigation ended with the decision of the Second Appeal in which this Court decreed the suit. A decree was passed in favour of the Appellant. An application for review was filed by the Petitioner. By that time, the learned Judge who had decided the Second Appeal was no more a Judge of this Court and hence as per the then prevailing rule, the 2 application for review was placed before a Division Bench on 1st September, 1994. The Division Bench passed the following order. “1. Heard parties. 2. Rule. To be heard expeditiously. In the meanwhile, the order under review is stayed on the applicant-Board depositing a sum of Rs. 50,000/- on or before 19th September 1994 in the Trial Court at Sangli which may be allowed to be withdrawn on furnishing solvent security on the satisfaction of the trial Court. In case the amount is not deposited on or before 19th September 1994 as ordered above, the stay shall stand automatically vacated.” 3. It appears that the Petitioner did not succeed in the Review Petition. A sum of Rs.50,000/- deposited by the Petitioner in terms of the aforesaid order was withdrawn by the Respondent. 4. An application for execution filed by the Respondent for executing decree passed in the Second Appeal is pending. It appears that a Chartered Accountant has been appointed as Court Commissioner probably to make an adjudication as regards the amount payable to the Respondent under the decree. 5. By the impugned order dated 15th January, 2010, the Executing Court directed the Petitioner to pay the Respondent a sum of Rs. 50,000/- in terms of the order of the Division Bench referred to above. A contention was raised by the Petitioner before the Executing Court that the 3 Petitioner was entitled to adjust the aforesaid amount of Rs.50,000/- towards the decretal amount. The Executing Court was of the view that by way of costs, the Respondent is entitled to costs of Rs.50,000/-. The Executing Court observed that the amount of Rs.50,000/- has been adjusted by the Petitioner against the amount payable to the Respondent under the decree. The learned Judge observed that the said adjustment was illegal and the same ought not to have been made in breach of the order of this Court. 6. The learned counsel appearing for the Petitioner submitted that there was no occasion for the Executing Court to pass the order of payment of Rs.50,000/- as the same was beyond the scope of the decree. The learned counsel appearing for the Respondent supported the order. He submitted that the sum of Rs.50,000/- was deposited by the Petitioner in terms of the interim order passed by this Court and was withdrawn by the Respondent in terms of the said order and therefore, the Petitioner had no right to adjust the said amount towards decretal amount. 7. I have carefully considered the submissions. As of today, there is no final adjudication made as regards the decretal amount, if any, payable by the Petitioner to the Respondent. The Respondent has withdrawn the sum of Rs.50,000/- deposited by the Petitioner in terms of the order of the Division Bench. Unless the amount due and payable to the Respondent as per the decree is determined, the issue whether the 4 Petitioner was entitled to adjustment of Rs.50,000/- towards decretal amount cannot be decided and in any event, at this stage, the Executing Court could not have directed the Petitioner to pay the said amount of Rs. 50,000/-. 8. Though the impugned order will have to be set aside, the Executing Court will have to issue necessary directions to the Court Commissioner already appointed to submit a report expeditiously. The Trial Court will have to expeditiously dispose of the execution application. 9. Hence, the Petition is disposed of by passing the following order. (a) The impugned order dated 15th January, 2010 is quashed and set aside. However, the issue of legality of adjustment of Rs.50,000/- purportedly made by the Petitioner is kept open and the said issue will have to be considered by the Executing Court while deciding the execution application. (b) The Executing Court will issue direction to the Court Commissioner to immediately submit a report by completing the commission work. 5 (c) The hearing of the execution application is expedited and the Executing Court is directed to decide the execution application as expeditiously as possible and in any event before the end of October, 2010. (d) The Petition is disposed of in above terms. (A.S.OKA, J)