1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1033 of 2009 Madhu Sukhlal Choudhari, Age 40 years, Occu. Farmer, R/o Kunzar, Tq. Chalisgaon, Dist. Jalgaon. ....Petitioner. Versus 1] The Special Land Acquisition Officer, Jalgaon. 2] The Collector, Jalgaon. 3] Waman Sukhlal Choudhari, Age 85 years, Occu. Agri., R/o AP Kunjar, Tq. Chalisgaon, Dist. Jalgaon. 4] Bhavrao Sukhlal Chaudhari, Age 82 years, Occu. Agri., R/o A/P. Kunjar, Tq. Chalisgaon, Dist. Jalgaon. 5] Khadu sukhlal Chaudhari, Age 70 years, Occu. Agrit., R/o Galli No. 8, Ghar No. 624, Malli Galli, Subhash Nagar, Dhule, Tq. & Dist. Dhule. 6] Nimbabai Sukhlal Chaudhari, Age 56 years, Occu. Agri., R/o Indira Nagar, Tq. & Dist. Dhule. 7] Devidas Daulat Chaudhari, Age 52 years, Occu. Agrit., R/o Wadibhokar Road, Opp. Panchayat Samiti, Dhule Tq. & Dist. Dhule. 2 8] Rajendra Uttam Chaudhari, Age 40 years, Occu. Service, R/o C/o Pandharinath Daulat Chadudhari, Op. Panchayat Samiti, Dhule Tq. & Dist. Dhule. ... Respondents ------------- Shri A.B. Kale, Advocate for petitioner. Shri D.R. Kale, A.G.P., for respondent Nos. 1 & 2. Shri G.K. Kshirsagar, Advocate h/f M.L. Choudhary, Advocate for intervenor Nos. 3 to 8. -------- CORAM : R.K. DESHPANDE, J. DATE : 07th July, 2010. ORAL JUDGMENT : 1. This Writ Petition preferred by the decree holder who has filed Regular Dharkhast No. 310 of 2003 for execution of decree passed in L.A.R. No. 451 of 1991 i.e. the reference under section 18 of the Land Acquisition Act. The judgment and decree passed on 17/07/1998, enhancing the compensation payable in respect of acquisition of land to the petitioner /decree holder. The Regular Dharkhast is filed for an amount of Rs. 7,51,229/- which has been deposited by the State in the Court of Civil Judge Senior Division, Jalgaon. By impugned order the learned Joint Civil Judge Senior Division, Jalgaon permitted the petitioner / decree holder to withdraw an amount of Rs. 6,29,763/-, after 3 due identification on furnishing the bank guarantee for the said amount of a Nationalised bank for a period of 12 months and also on furnishing the undertaking. 2. Notice in this matter was issued for final disposal on 13/02/2009, all the respondents have served. A Civil Application No. 662 of 2010 was filed by the intervenor Nos. 3 to 8 for intervention which was allowed on 22/06/2010. The intervener’s are represented by Shri G.K. Khirsagar h/f M.L. Chudhary, the learned A.G.P. appears for respondent Nos. 1 & 2. 3. The learned counsel appearing for the parties submit that the matter can be finally decided, at the stage of admission itself. In view of, order passed earlier by this Court on 13/02/2009 for final disposal, hence Rule made returnable forthwith. Heard leaned counsel for the parties. 4. Shri A.B. Kale, learned counsel appearing for the petitioner / decree holder submits that the intervener’s have opposed the Regular Dharkhast filed by the petitioner for execution of the judgment and decree dated 27/01/1997 passed in L.A.R. No. 451 of 1991. The intervenor’s also filed a Civil Suit No. 106 of 2005 and Regular Civil Suit No. 331 of 2003, in which the petitioner / decree holder is party defendants. Both the suits are for recovery of the amount from the 4 petitioner / decree holder. In Regular Civil Suit No. 106 of 2005, decree is claimed for an amount of Rs. 93,370/- against the petitioner. Whereas, in Regular Civil Suit No. 331 of 2003, decree is claimed for an amount of RS. 18,622/-. There are certain prohibitory order passed in both the Regular Civil suits, restraining the petitioner /decree holder from withdrawing the amount deposited by the State in Regular Dharkhast No. 310 of 2003. He submits that, after deducting the said amount in terms of the orders passed in both the Civil suits, the petitioner is entitled to withdraw an amount of Rs. 6,23,763/-. Although, there is no other order passed in both the Civil suits, restraining the petitioner / decree holder from withdrawing the entire amount. The executing Court has passed conditional order, directing the petitioner to furnish bank guarantee for the amount of Rs. 6,29,763/- of a Nationalised Bank and to submit an undertaking. According to him, such an order was unwarranted, as there was no prohibition for execution of decree from any competent Court, nor there was any condition imposed that the decree is subject to furnishing bank guarantee and or any undertaking. 5. Shri G.K. Kshirsagar, Advocte h/f M.L. Choudhary, appearing for intervenor’s has opposed the relief claim in the petition. He has urged that intervenor’s have to recovery huge amount from the petitioner / decree holder, and they have instituted the suit for recovery of amount and hence the Trial Court has rightly passed an order to secure the claim of the intervenors. 5 6. It is an undisputed position that the petitioner is a decree holder and has filed Regular Dharkhast No. 310 of 2003 for execution of decree for an amount of Rs. 7,51,229/-. If at all the intervenors have any claim for recovery, they have filed Regular Civil Suit No. 331 of 2003 and 106 of 2005, which are pending for adjudication. In terms of the interim orders in both the civil suits, the petitioner /decree holder cannot be permitted to withdraw an amount of Rs. 1,11,985/-. Hence, the executing Court has rightly passed an order for deducting the said amount from the amount payable to petitioner. It has permitted the petitioner to withdraw amount of Rs. 6,29,763/- which becomes to the decree holder. However, the executing Court has passed an order, direct the decree holder to furnish bank guarantee for withdrawal of Rs. 6,29,763/- of a Nationalised bank and to submit an undertaking. Such an order cannot be sustained, particularly, when the amount claimed by the intervenors has been secured by deducting an amount of Rs. 1,11,985/-, in terms of the order passed in both the Civil suits and there is no impediment for permitting the petitioner / decree holder to withdraw an amount of Rs. 6,29,763/-. Simply because the intervenors have certain mandatory claims against the petitioner that cannot be reason for the Trial Court to impose the conditions. The Trial Court has therefore, committed an error apparent of evidence on record, in directing the petitioner to furnish bank guarantee of a Nationalised Bank and to give an undertaking. The order therefore, cannot be 6 sustained. 7. In the result, the instant Writ Petition succeeds the same is allowed. The order dated 17/11/2005 passed by the learned Joint Civil Judge, Senior Divison, Jalgaon in Regular Dharkhast No. 310 of 2003 is hereby quashed and set aside only to the extent it imposes the condition upon the petitioner / decree holder to furnish bank guarantee of a Nationalised bank and to give an undertaking before withdrawal of amount. The petitioner / decree holder shall be entitled to withdraw the amount of Rs. 6,29,763/- (Rs. Six lakh twenty nine thousand seven hundred and sixty three) without any condition. Rule is made absolute, there shall be no order as to costs. [ R.K. DESHPANDE, J. ] SDM*1033.09WP(J)