1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7577 OF 2008 Jaykarrao Shidoji Patil & Ors. ... Petitioners. V/s. Vishwasrao Shidoji Patil & Anr. ... Respondents. Mr. Bhushan Walimbe for the Petitioners. Mr. R.S. Khadapkar for the Respondents. CORAM : S.C. DHARMADHIKARI, J. DATED : 19TH JUNE, 2009. P.C. :- The Petitioner - Plaintiff/Decree Holder is aggrieved by an order dated 29th August 2008 passed by the Learned Civil Judge, Junior Division, Islampur in Regular Darkhast No. 18 of 2007. 2. He is aggrieved by that part of the order where while allowing his request to withdraw the sums deposited, the Executing Court has imposed a condition on him, which is not even contemplated by or provided under the decree. 3. The Petitioners - Plaintiffs filed a Suit in the Trial Court being R.C.S. No.228 of 1976. By a Judgment and Decree of 2 the Trial Court, the Petitioners’ - Plaintiffs’ Suit was allowed and it was directed that the Respondents before me are perpetually restrained by an order of permanent injunction from disturbing or causing obstruction to the Petitioners’ possession and enjoyment of the suit properties. While allowing the Suit, the counter-claim was dismissed and the interim orders were directed to be merged in the final order. There was some amount deposited in the Trial Court by the Petitioners - Plaintiffs which they were permitted to withdraw. 4. Aggrieved by this Judgment and Decree, an appeal has been preferred being R.C. Appeal No.47 of 2004. That Appeal is preferred by the Respondents - Original Defendants against rejection of their counter-claim as well as against the Judgment and Decree in the Plaintiffs’ - Petitioners’ Suit. An application for stay was made therein which has been rejected and that order is final. In these circumstances, the grievance of the Petitioners - Plaintiffs that the condition imposed by the Executing Court is beyond the scope of the Executing Court's power so also the decree in question deserves to be accepted. The submission of Mr. Walimbe in that behalf is well founded. After having perused the Judgment and Decree of the Trial Court and the order of the Lower Appellate Court, I am of the opinion that the interest of the parties could have been protected by an order and direction to the Petitioners to furnish security to the satisfaction of the Trial Court, while withdrawing the amount deposited in the Court by them. Similarly, they could have been directed to execute or furnish 3 an undertaking additionally. In these circumstances, the order under challenge is quashed and set aside. 5. It is directed that the Petitioners - Plaintiffs shall furnish security to the satisfaction of the Trial Court so also given an undertaking to this Court within a period of two weeks from the date of the receipt of the copy of this order, that they shall comply with the orders and directions of the Appellate Court in the Appeal preferred by the Respondents subject of course to their rights and contentions in law. Thus, they should undertake that the amount would be brought back with interest at such rate as directed by the Lower Appellate Court in the final orders in the Appeal. The Petition is allowed in these terms. No costs. S.C. DHARMADHIKARI, J.