1. The applicant has applied for deleting the name of Babiben Maganbhai Harijan, the original claimant, from the title clause of the judgment and order of this Court in First Appeal No.1285 of 2002 and First Appeal No.239 of 2006 and further to hold that the applicant herein, being brother and sole surviving heir, would be entitled to the amount ordered to be paid by the aforesaid judgment dated 10.2.2006. Learned counsel Mr.Parekh has submitted an affidavit of the applicant, Shri Dharmshibhai Maganbhai Harijan, stating that there are no legal heirs of the original claimant Babiben Maganbhai Harijan, who was his mother, and the other claimant Maganbhai Sadabhai Harijan having expired since long, the deponent is the only legal heir of deceased Babiben.
2. Learned counsel Mr.Parekh submitted that, when the original order dated 10.02.2006 in First Appeal No.1285 of 2002 and First Appeal No.239 of 2006 was made and directions therein were issued, late Babiben had already passed away, but due to lack of communication between the appellants and their advocates, that fact could not be brought on record. However, factually Dharmshibhai Maganbhai Harijan is the only surviving claimant who would be entitled to disbursement of the amount in terms of the order in appeal. It was stated by learned counsel Mr.Parekh that learned counsel appearing for respondent Nos.2 and 3, i.e. learned counsel Mr.Maulik J.Shelat, has clearly expressed no objection of respondent Nos.2 and 3, Oriental Insurance Company Ltd., to the affidavit being taken on record and to the amount being disbursed by the Tribunal concerned to the applicant as the sole surviving legal heir, upon appropriate application being made by him and the Tribunal being satisfied that there is no other person who could claim through the claimants who have passed away during pendency of the original or appellate proceedings. Under the circumstances and after the above consensus being recorded, learned counsel Mr.Parekh requested to dispose the present application with liberty to the applicant to move the Tribunal concerned with an application under R.5 O.22 of the Code of Civil Procedure for necessary order directing disbursement of the amount deposited with the Tribunal.
3. The application is accordingly disposed with the observation that, if any amount is lying deposited in the High Court pursuant to the proceedings of First Appeal No.1285 of 2002 and First Appeal No.239 of 2006, it shall be immediately transmitted to the Tribunal concerned.
Sd/-
( D.H.Waghela, J.) (KMG Thilake) Top