1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 4849 OF 2010 IN FIRST APPEAL NO. 1743 OF 2007 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ CORAM : S.V.GANGAPURWALA, J. DATE : 24/09/2010 PER COURT : 1. This is an application filed by the original plaintiff and respondent in Appeal. The Suit filed by the plaintiff has been decreed. The original defendant has preferred First Appeal. After admission of the First Appeal, this Court vide its order dated 26/03/2008 granted stay to the Judgment and Decree passed by the Trial Court dated 13/6/2008 and also directed that the original defendant shall not create any third party interest. 2. Vide the present application, the applicant/original plaintiff claims that he had supplied sugarcane to non applicant no. 3 worth Rs. 77,627/-. Even the Trial Court has 2 come to the conclusion that the present applicant is in possession of suit property. Mr. Kakade, the learned counsel for non applicant no. 1 states that there is dispute regarding the factum of possession. The land was attached in the year 2003 and as such the amount is required to be paid to the Society. Mr. N.D.Sonawane, the learned counsel for non applicant no. 2 states that the said amount has been attached by non applicant no. 2 pursuant to the recovery certificate. It is not disputed that the original defendant had taken credit from non applicant no. 2 and has mortgaged the property. In light of the same, non applicant no. 2 has every right to attach the produce taken out from the said land. 3. Perusal of the record shows that it is the present applicant, who has supplied the sugarcane. There is decree subsisting in favour of the present applicant. It is not disputed that the present applicant is not liable to pay any amount to non applicant no. 2. Eventually, how the remaining consideration amount is to be paid in the event the Appeal is dismissed, would be subject matter of decision at the time of 3 final adjudication. If the Appeal is allowed, non applicant no. 2 would have every right to recover the amount from the suit property. In the event, the appeal is dismissed, then in that case, from the remaining consideration amount, the dues of non applicant no. 2 can be satisfied. 4. In light of the above facts, there is no impediment to allow the applicant to withdraw the amount of Rs. 77,627/-, which is the legitimate amount payable by non applicant no. 3 – Karkhana to the applicant. As far as prayer clause ‘ C ’ is concerned, the same can not be considered at this stage. 5. In light of the above discussion, the Civil Application is allowed in terms of prayer clause ‘ B ’ only. The present Civil Application is accordingly disposed of. [ S.V.GANGAPURWALA ] JUDGE knp/CA 4849.10 in FA 1743.2007