THE HON’BLE SRI JUSTICE VILAS V.AFZUL PURKAR C.R.P.No.1559 of 2009 ORDER Heard both sides. The short question that falls for consideration is whether the Court below was justified in returning cheque petition No.174 of 2009 filed by the petitioner in O.S.No.56 of 1995?. The said suit was filed by the respondent herein seeking recovery of amount from the petitioner. At the earlier stage, respondent had obtained an ex parte decree which was eventually set aside by this Court in CMA No.2958 of 2000, dated 31-10- 2000. While setting aside the said ex parte decree, this Court has imposed condition that the petitioner herein should deposit Rs.2,00,000/- and he also pay costs of Rs.2,000/- to the respondent. Both the said conditions were complied with. Therefore, the suit filed by the petitioner was tried on merits and it appears that the suit now stands dismissed against which respondent has filed a first appeal A.S.No.69 of 2009, which is pending before this Court. It appears that there is another cross suit filed by the petitioner which was decreed in his favour and which gave rise to another appeal A.S.No.34 of 2009 at the instance of the respondent and it is also pending before this Court. While the matter stood thus, the petitioner sought withdrawal of Rs.2,00,000/- deposited as a condition imposed in CMA No. 2958 of 2000. The affidavit in support of the said application specifically states that there are no court attachments and no one else is entitled to the said amount except the petitioner. The respondent herein filed counter opposing the said application by brining it to the notice of the Court below that two first appeals referred to above are pending before this Court. The Court below however returned the said application of the petitioner on the ground that no cheque can be issued unless there is a specific direction from this court. Hence, this revision. It is apparent that the petitioner’s application I.A.No.174 of 2009 has not been adjudicated upon on merits by the Court below. However, I am unable to appreciate as to how an application which is numbered can be returned without disposal on merits. Apart from that, it is undisputed that the said amount lying in deposit being not subjected to any attachment and no one else is making claim. The respondent also has not sought any interim relief pending his suit or appeal and more over, his suit is dismissed and on the contrary, the petitioner’s suit is decreed. Prima facie, I am unable to see any impediment as to why petitioner’s application is not entertained by the Court below. Learned counsel for the respondent contends that this revision is not maintainable as the order impugned is not one on merits and it does not fall under an order referable to Order 43 Rule 1 CPC. He also contends that since AS No.69 of 2009 filed by the respondent is pending, the petitioner must get clarification from this Court in that appeal. This appears to be the reason for the Court below to return the application. I am unable to appreciate both the said objections, inasmuch as when the suit of the respondent was dismissed, he filed the appeal before this Court and unless he succeeds in the appeal, normally there would not be any direction of this nature pending that appeal. Further, the impugned order clearly says that the Court below returned the cheque petition though it is numbered and that can be corrected by this Court under Section 115 of the CPC. In the result, the civil revision petition is allowed and the impugned order is set aside. The Court below shall decide I.A.No.174 of 2009 on merits and pass appropriate orders within one month from the date of receipt of a copy of this order. If petitioner has taken return of I.A.No.174 of 2009, he shall resubmit it, forthwith. ___________________________ VILAS V.AFZUL PURKAR,J rkk Dated: 16-11-2010