1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2813 OF 2008 IN WRIT PETITION NO.7633 OF 2007 M/s.Agro Industrial. ..Applicant. V/s. National Heavy Engineering Co-op. Ltd. ..Respondent. WITH WRIT PETITION NO.7633 OF 2007 National Heavy Engineering Co-op.Ltd. ..Petitioner. V/s. M/s.Agro Industrial Associates. ..Respondent. Mr.V.P.Sawant for Petitioner/Respondent. Ms.Nita Solanki i/b M/s.Kiran Jain & Co.for Respondent/Applicant. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 13, 2009. DATE : FEBRUARY 13, 2009. DATE : FEBRUARY 13, 2009. P.C. : P.C. : P.C. : 1. This Application is taken out for recall of the Order dated 11th July, 2008. However, on hearing the argument, I am more than convinced that dealing with the argument would answer the main issue involved in the pending Writ Petition. In the circumstances, this order will dispose of both the 2 Civil Application as well as Writ Petition. 2. Writ Petition is directed against the Order dated 7th September, 2007 passed by the Executing Court in Execution Petition No.22 of 2006. That order was passed on the application preferred by the Writ Petitioner/Applicant herein to permit the Applicant to pay the decreetal amount in instalment of Rs.50,000/- per month. That request was turned down by the executing Court and instead, the Petitioner/Applicant was called upon to pay Rs.12,17,594 which was due as on 25th May, 2006. Subsequent to the impugned order, no doubt the Petitioner has claimed to have deposited sum of Rs.3 Lakhs (Rs.2 Lakhs in this Court and Rs.1 Lakh in the executing Court) pursuant to order dated 15th October, 2007. However, the question is whether the Petitioner is entitled to the relief as claimed in the present Petition while challenging the order passed by the executing Court dated 7th September, 2007. In my opinion, no indulgence can be shown to the Petitioner. If the Petitioner had intention to pay the amount in instalment of Rs.50,000/- per month, the Petitioner should have started depositing that amount in the executing Court irrespective of the order passed by the executing Court. However, it 3 is obvious that the attempt of the Petitioner is to gain time. No further indulgence can be shown to the Petitioner. The fact that the Petitioner has already paid amount towards tax deducted at source on the suit claim amount is a matter, which will have to be addressed by the executing Court. The executing Court shall examine that aspect on its own merits. 3. Suffice it to observe that no interference in exercise of writ jurisdiction is warranted. Hence Writ Petition as well as Civil Application is dismissed. 4. In the order dated 11th July, 2008, the Respondent was permitted to withdraw the amount upon furnishing solvent surety. It will be open to the executing Court to consider whether the decree-holder should be discharged of that obligation and appropriate orders be passed in that behalf, as and when required. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)