1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5356/2008 1] Sow.Kewlabai W/o Shankar Tawade died through her legal representatives. 1-1] Maroti @ Raju S/o Shankar Tawade Age 23 years, Occ-Agriculture 1-2] Ku.Baby D/o Shankarrao Tawade Age 19 years, Occ-household. 1-3] Bapuji S/o Shankarrao Tawade, Age minor under guardianship of petitioner no.1 Maroti S/o Shankar Tawade All resident of Pawadewadi Tq. & Dist.Nanded. .. PETITIONER VERSUS Shankarrao S/o Bapuji Tawade Aged 70 years, Occ-Agril. R/o Talani, Tq.Hadgaon,Dist.Nanded. .. RESPONDENT .... Shri V.D.Patnoorkar,Adv.for petitioner. Shri M.D.Narwadkar,Adv.for Respondent. 2 .... CORAM : R.K.DESHPANDE,J. DATE : 19/7/2010. ORAL JUDGMENT: 1] This Writ Petition challenges the order passed under Exhs.12 and 18 in Special Darkhast No.24/2007 by the learned Civil Judge, Senior Division, Nanded. The petitioner is the decree holder and had filed Special Darkhast No.24/2007 for execution of a decree passed on 9/3/1998 in Special Civil Suit No.47/1995. Regular Civil Appeal No.241/2001 against the said decree was also dismissed. Hence Special Darkhast No. 24/07 was filed for recovery of Rs.1,44,500/-. 2] Notice in this matter was issued on 4/5/2009. Shri Narwadkar, the learned counsel appears for the respondent. The learned counsels for the parties agree that the matter can be finally disposed of at the stage of admission itself. Hence Rule. Rule returnable forthwith. By consent of parties, petition is heard finally. 3] Respondent judgment-debtor filed application Exh.12 in Special Darkhast no.24/2007. The decree holder had filed application Exh.18 for issuance of attachment warrant against judgment debtor. Both these applications are decided by 3 common order dated 25/7/2008 which is impugned in the present Petition. 4] By this common order, it has been held that an amount of Rs.30,000/- was deposited by judgment-debtor in First Appeal No.89/99 whereas an amount of Rs.75,000/- was deposited in First Appeal No.169/2004 by the judgment-debtor. The trial Court has further held that after deducting the said amount only amount of Rs.9500/- is due from the judgment- debtor, which he is ready to deposit and hence, the application for issuance of attachment warrant filed by the petitioner decree-holder has been rejected. The judgment-debtor is directed to deposit amount of Rs.9500/-. 5] It is not in dispute that an amount of Rs.75,000/- has not been deposited in any of the proceedings arising out of decree passed in Special Civil Suit No.47/95. Special Darkhast No. 24/07 is for execution of the decree passed in the said Civil Suit. It is for an amount of Rs.1,44,500/-. It is also not disputed that in First Appeal No.89/99 an amount of Rs. 30,000/- has been deposited by the judgment-debtor which has also been withdrawn by the decree-holder. Therefore, from the decreetal amount of Rs.1,44,500/- Rs.30,000/- will have to be deducted. The proceedings for execution would be for an amount of Rs.1,14,500/-only. The trial Court was wrong in holding that an amount of Rs.75,000/- was granted to the 4 decree holder. In fact the said amount has no connection with the execution of the decree passed in Special Civil Suit No. 47/95. In view of this, order passed by trial Court cannot be sustained. The same therefore, needs to be set aside. 6] In the result, instant Writ Petition succeeds. The common order dated 25/7/2008 passed by the learned Civil Judge,Senior Division, Nanded in Special Darkhast No.24/07 is hereby quashed and set aside. The executing Court is directed to decide both the applications afresh, keeping in view the observations as above. The judgment-debtor shall be at liberty to contest the same. With these observations, the instant Writ Petition is allowed. Rule made absolute in above terms. No order as to costs. [R. K. DESHPANDE, J.] umg/wp5356-08