(Per : HONOURABLE MR.JUSTICE A.L.DAVE) Rule.
Learned advocate Mr. Shah waives service of notice of rule on behalf of opponent.
2. Heard learned advocates for the parties. It transpires from the order of learned Single Judge that Special Civil Application No.4664 of 2011 was preferred to challenge the order dated 28.02.2011 passed below Exh.5 in Civil Miscellaneous Application No.47 of 2009, where, stay of execution of decree in Summary Suit No.2 of 2005 was granted on condition of deposit of Rs.25 lakh with interest thereon at the rate of 9% per annum within 30 days from the date of the order.
3. According to learned advocate Mr. Shah, what was orally submitted and requested by him was for a direction on the Civil Court to hear and dispose of Civil Miscellaneous Application No.47 of 2009 and not Summary Suit No.2 of 2005, as the said suit was already disposed of.
4. In light of this fact-situation, the last paragraph of CAV Judgment dated 24.02.2011 in Letters Patent Appeal No.915 of 2011 is ordered to be modified to read as under :
"(2) The Principal Senior Civil Judge, Porbandar is hereby directed to take up Civil Miscellaneous Application No.47 of 2009 for hearing and disposing of the same on or before 31.12.2012. It is expected that both the parties will fully cooperate with the learned Judge in expeditious disposal of the application as directed by us. It is clarified that passing of this order will not grant any protection to the appellant - original defendant against execution of the decree passed in Summary Suit No.2 of 2005."
4.1 Necessary corrections be carried out in the record by the registry.
5. The present Miscellaneous Civil Application stands disposed of accordingly. Rule made absolute. No costs.
[A.L.
Dave, J.] [J.B.
Pardiwala, J.] #MH Dave Top