{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 68 OF 2009 Laxman Pandharinath Dhanwade & Another PETITIONERS VERSUS Sharjabai Salveram Kusalkar & Another RESPONDENTS ....... Mr.N.B.Narwade, Advocate for petitioner Mr.V.P.Langhe, h/f Mr.V.D.Sapkal, Advocate for respondent No.1 Mr.K.J.Ghute Patil, AGP for respondent No.2 ....... [CORAM : A.V.POTDAR, J.] DATE : 17 th June 2009 PER COURT: 1. Being aggrieved by order passed below Exhibit-48 in RCS No.146/2005 by Civil Judge, Junior Division, Nevasa, the present writ petition is filed by the original defendants, challenging the same under Articles 226 and 227 of the Constitution of India. 2. After hearing learned advocate for petitioner and after {2} perusing the record, it appears that the respondent No.1 has filed suit for declaration against the petitioners, who are defendants in the trial court, that the sale deed executed on 12.01.1983 is not binding on her, as it was not executed by her and she is also not a party to the execution of that sale deed. It further appears that the petitioners contested the suit by filing written statement. Para 9 of the said written statement, discloses that the suit property was sold by the respondent No.1, Sarjabai by executing a registered sale deed dated 12.01.1983, which is executed in the office of Sub- Registrar. It also appears that earlier an application was moved vide Exhibit-24 dated 20.12.2005, by respondent No.1 requesting that considering the dispute in respect of thumb impression appearing on the registered sale deed, the same may be referred to finger print expert for examination. By order dated 31.04.2005, the said application was rejected. The alleged registered document is at Exhibit-45. It further appears that thereafter, after the evidence of the petitioner No.2 is over, in view of admission given by her in the cross examination that she has no objection to refer the document in question for examination of the thumb impression to the finger print expert, an application came to be moved by the respondent No.1, for sending the said document for examination to finger print expert. The same is resisted by the petitioners. However, the said application came to be allowed vide order dated 18.11.2008 and the said order is under challenge by way of present petition. 3. Considering the controversy between the parties, it is {3} necessary to ascertain as to who has executed the document at Exhibit-45, by putting thumb impression. Merely because earlier similar application was rejected by the predecessor of the present incumbent, that order will not amount as rejected or will not attain finality as urged by the advocate for the petitioners. Both the orders are passed on the applications during the pendency of the proceedings before the trial court, the same will attain finality after final order would be pass in the proceedings either by decreeing the suit or by dismissing the same. After drawl of the decree, the point in issue will be said to be decided by that court, but it is always subject to the orders of the appellate courts. It is not point in issue in the writ petition and hence the same need not be discussed at length. The only question remains that to give finality to the dispute between the parties there is only way to ascertain as to who is the executant of the document. In the premise even though earlier similar type of application was rejected, yet to solve the issue once for all, it is necessary to refer the document to the finger print expert. In the premise, there are no merits in the writ petition and the same is accordingly dismissed. 4. At the same time, after reading the operative part of the order passed below Exhibit-48, clause II requires to be modified as the plaintiff to submit specimen of her thumb impression before the Nazir / COC of the Court and thereafter the court to refer the admitted thumb impression obtained in presence of the officer of the Court and Exhibit-45 for the opinion of the {4} finger print expert, with this modification, the writ petition stands dismissed with no order as to costs. Copy of this order to be sent to the trial court at the earliest. [A.V.POTDAR, J.] drp/wp68-09