1 WP 6389/2010 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6389 OF 2010 Bhimabai alias Bhimwabai Ambadas Nandurkar and Ors. .. Petitioners V/s Pramod Ambadas Nandurkar & Ors. .. Respondents Mr. Rajshekhar S. Alange for the petitioners. Mr. A.A. Joshi for respondent no.4. CORAM : D.G. KARNIK, J. DATE : 19TH JULY 2011 P.C. : 1. Rule, returnable forthwith. 2. Mr. Joshi waives service for respondent no.1 (original plaintiff). Mr. Birajdar for respondent no.4 is absent when called. Service on other respondents is dispensed with since the impugned order is passed on an application of respondent no.1. 3. Heard. 4. The respondent no.1 filed an execution proceedings bearing Special Darkhast No. 43 of 2009 for execution of a 2 WP 6389/2010 consent decree passed in Special Civil Suit No. 245 of 2008. In the execution proceedings, the respondent no.1 made an application dated 26th August 2009 for appointment of a Court commissioner. The petitioners objected the said application by filing their say on 11th September 2009. The matter was thereafter adjourned from time to time and was posted on 16th April 2010 for hearing of the application (Exhibit 25) made by the respondent no.1 for appointment of a Court commissioner. On that day, the Court passed an order allowing the application for appointment of a Court commissioner. That order is impugned in the present petition. 5. Learned counsel for the petitioners states that the order below Exhibit 25 was passed without giving an opportunity to the petitioners of being heard and therefore the order needs to be set aside. 6. The opening lines of the order dated 16th April 2010 shows that the judgment debtors and their advocate were absent when called though it records that the judgment debtors had filed their say to the application and objected to appointment of a Court commissioner. Copy of the roznama annexed to the petition shows that the petitioners (judgment debtors) were 3 WP 6389/2010 present in the Court on 16th April 2010 and their presence is noted in the roznama. Copy of the daily board (certified copy handed over by the counsel for the petitioners is taken on record) shows that on 16th April 2010 the execution proceedings were adjourned to 14th June 2010. There is thus a contradiction in the order dated 16th April 2010 which shows that the petitioners were absent and the roznama which records the presence of the petitioners and the daily board entry which shows that on 16th April 2010 the matter was adjourned to 14th June 2010. In view of these contradictions and in view of the specific contention of the petitioners that the order was passed without giving them an opportunity of being heard, the impugned order is required to be set aside. Accordingly, I pass the following order:- (i) The impugned order dated 16th April 2010 passed below the application (Exhibit 25) in Special Darkhast No. 43 of 2009 is set aside and the matter is remanded back to the executing Court for deciding the application (Exhibit 25) afresh after giving an opportunity to the parties of being heard. (ii) The parties shall appear before the executing Court on 22nd August 2011. Counsel for the petitioners and the respondent 4 WP 6389/2010 no.1 waive service of notice of hearing to be posted on 22nd August 2011. (iii) The executing Court shall decide the application (Exhibit 25) on its own merits and no opinion is expressed on merits. (iv) All concerned shall act on a copy of this order duly authenticated by the Private Secretary/Sheristedar of this Court. The Registry shall also send intimation of this order to the executing Court. Petition disposed of. (D.G. KARNIK, J.)