1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2045 OF 2009 ... Abdul Gani s/o Kharulla Chaudhari age 74 yrs, occ. Agril, r/o Gauli Galli, Latur. And residing at Jawahar Bazar Old Khatik Khana, Bidar (karnataka State. ...PETITIONER V E R S U S Dnyanoba s/o Sangram Musane. Age 58 yrs, occ. Agri, R/o Chandegaon, Tq. Udgir, Dist. Latur. ..RESPONDENT M.D.Thumjbe- Mhase Advocate for the petitioner. Shri. A.R. Kale, Advocate for the respondent. CORAM : B.R. GAVAI, J : DATE : 9th JULY, 2009 PER COURT :- 1. Rule. Rule made returnable forthwith. Heard by consent. 2- By way of present petition, the petitioner takes an exception to the order passed by the 4th Jt. Civil Judge Senior Division, Latur dated 21.01.2009 rejecting the application filed by the present petitioner for permission to withdraw the amount of consideration. 3- An agreement of sale was entered in between the petitioner and respondent wherein it was agreed that the land of defendant was to be sold to the plaintiff for an amount of Rs.15.00 lacs per acre. Earnest amount was also paid to the petitioner. In the agreement there was a mention that there is dispute with regards to exact area of land, therefore, it was agreed that land was to be measured by the respondent and only an area of undisputed land 2 found on the spot was to be sold. 4- It appears that there was dispute between the parties and accordingly respondent was required to file a suit for specific performance. A decree for specific performance was accordingly passed on 06.11.2008. As per the said decree plaintiff was directed to pay an amount of Rs.9,76,739/- or the proportionate amount according to land ascertained in the measurement. The plaintiff i.e respondent was directed to get land measured and pay remaining consideration amount within two months from the date of decree. The plaintiff was further directed to pay Rs.9,76,739/- to the defendant within two months from the date of decree, if the measurement could not be carried out within the stipulated period, and adjust the amount after measurement to avoid loss. The defendant-petitioner is also directed to get the sale deed executed. 5- It appears that since the measurement could not be carried out within the stipulated period the plaintiff-respondent has deposited an amount of Rs.9,76,739/- in the trial court. The petitioner accordingly filed an application for permission to withdraw the said amount. Said application is rejected. Hence the present petition. 6- Smt. Thumbe-Mhase the learned counsel appearing on behalf of the petitioner submits that the petitioners are willing to execute the sale deed and an amount deposited towards the land which the petitioner had sold to the respondent be permitted to be withdrawn. In my view, there is no impediment if the petitioner is permitted to withdraw the amount which is deposited. She, therefore, submits that the learned trial court has erred in 3 rejecting the application. 7- Shri Kale, the learned counsel appearing on behalf of the respondent, on the contrary submits that the petitioner has not executed the sale deed and as such he is not entitled to the amount. He further submits that if in the measurement, the land is less than as agreed in the agreement of sale, the petitioner would not be entitled to the entire amount. 8- I find that the interest of justice is sub served by passing the following order. ORDER 1. The petitioner is directed to get the sale deed executed in favour of respondent-plaintiff on 27th July, 2009. 2- The petitioner is directed to withdraw the aforesaid amount of Rs.9,76,739/- which is deposited in the trial court and directed to file an undertaking before the trial court that if in the measurement land is found to be less than agreed, he would refund the amount in proportion to the land, found less than agreed. 3- Rule is disposed of in the aforesaid terms with no order as to costs. ( B. R. GAVAI ) JUDGE ..... aaa/wp2045.09.odt