spb/- 1 wp4695.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 4695 OF 2011 Shri Tukaram Namdeo Chumbhale & Ors. ... Petitioners. V/s. Shri Sakharam Chima Tapase & Anr. ... Respondents. --- Mr. Milind M. Sathaye for the Petitioners. Mr. Girish Agrawal for the Respondents. ----- CORAM : R.M. BORDE, J. DATE : 25TH AUGUST, 2011. P.C. : 1 Heard. Rule. With the consent of the parties, petition is taken up for final hearing and disposal at the admission stage. 2 An interlocutory order passed by the Ad hoc District Judge-1 Nasik on 04.02.2010 below Exh. 1 in Civil Appeal No. 314 of 2000 so also an order passed below Exh. 74 dated 07.04.2011 are subjected to challenge in this petition. The first appellate court was pleased to direct appointment of D.I.L.R. to conduct measurement of the suit property by local inspection and tender report to the court. The order was passed by the court on 24.11.2006. However, it appears that for some reasons or the spb/- 2 wp4695.11.sxw other, the report of DILR was not received. It was found that for considerable period on account of failure to take steps by the petitioner, the measurement was not carried out and report thereof was not submitted to court and as a consequence, the appeal also remained pending for final disposal. The first appellate court, therefore, recalled the order passed earlier on 24.11.2006, appointing the D.I.L.R. for conducting measurement of the disputed property and issued directions to proceed with the appeal. An application seeking recall of the order was tendered by the petitioners, explaining the circumstances attributing the failure to the D.I.L.R. to conduct measurement of the suit property. It is contended by the petitioners that in spite of several efforts, the D.I.L.R. did not inform the estimated fees for conducting measurements of the suit property as a result thereof, there was failure on the part of the petitioner to deposit necessary charges. The petitioner however, has deposited an amount of Rs.Ten thousand with the court and requested that necessary amounts towards fees for measurement shall be appropriated out of the amount deposited by the plaintiffs, petitioners herein. However, the court while dealing with the review application, also failed to consider submissions made by the petitioners and ultimately rejected the application and confirmed the order passed earlier. spb/- 3 wp4695.11.sxw 3 Counsel appearing for the respondents on instructions, fairly concedes that D.I.L.R. was appointed to conduct the measurement of the disputed property and he can be directed to proceed with the function of conducting measurement and that he shall also be directed to submit his report to the court expeditiously. In view of the statement made by the counsel for the respondents, there can be no impediment in quashing and setting aside the orders impugned in this petition and directing the DILR to comply with the order passed on 24.11.2006 below Exh.51. 4 The writ petition is therefore, allowed. The order passed below Exh.1 in Civil Appeal No. 314 of 2000 decided on 04.02.2010 so also the order passed below Exh. 74 in Civil Appeal No.314 of 2000 decided on 07.04.2011 stand quashed and set aside. The first appellate court shall issue appropriate injunction to D.I.L.R. and call report in respect of the measurement and ensure compliance of the directions issued by the appellate court on 24.11.2006 below Exh. 51 expeditiously. The amount of Rs.Ten thousand deposited by the petitioners herein shall be appropriated towards fees payable in respect of measurement to be conducted by the D.I.L.R. 5 Rule is accordingly made absolute. There shall be no order as to spb/- 4 wp4695.11.sxw costs. The first appellate court shall decide Civil Appeal No. 314 of 2000 as expeditiously as possible, preferably within six months from the receipt of the writ of this order. [R.M. BORDE,J]