Rule returnable today. Learned advocate Shri Nalin K. Thakker appears for and waives service of notice of rule for and on behalf of the respondent. With the consent of the parties, this matter is heard and disposed of finally.
The petitioner has assailed the order passed by the learned Addl. District Judge, Gandhidham [Kutch] made below Application Exh. 11 in Regular Civil Appeal No. 2 of 2010 whereby an application made by the petitioner for staying operation and execution of the decree passed in Regular Civil Suit No. 327 of 2006 in Civil Execution Application No. 1 of 2010 pending before the learned 2nd Addl. Civil Judge, Gandhidham has been rejected. He approached this Court under Article 227 of the Constitution of India and had requested for stay of the execution of decree for a sufficient cause.
This Court, while admitting this writ petition on 14th November 2011,examined the material as also considering the provisions of Rule 5 of Order XVI CPC directed the present petitioner to furnish bank guarantee to the tune of Rs. 1.15 lacs before the trial Court on or before 30th November 2011. Subject to such furnishing of bank guarantee, by way of ad interim relief, further proceeding of the Execution Application No. 1 of 2010 pending before the learned Addl. Senior Civil Judge, Gandhidham was stayed.
This Court has heard learned advocate for the petitioner Shri Amrish Patel who has vehemently submitted that the learned Addl. District Judge, Gandhidham, who is seized of Reg. Civil Appeal No. 2 of 2010, since has denied to stay the Execution of the decree in Regular Civil Suit No. 327 of 2006, if the order passed by this Court earlier is not confirmed, the petitioner will be non-suited and the whole purpose of filing the appeal before the appellate forum would be frustrated. He further argued before the Court that on merits, he stand an excellent chance and the respondent already is protected by way of his furnishing a bank guarantee, and therefore, when the Appeal is posted for hearing in the month of August 2012, the same can be decided on merits and the petitioner judgment-debtor is ready to extend full cooperation in proceeding with the appeal and no further adjournments shall be sought for; if the appeal is directed to be expeditiously heard and decided.
As against that, learned advocate Shri Nalin K. Thakker appearing for the judgment creditor-respondent strongly contended that the order of stay of the execution proceeding has been obtained by suppressing the material facts before this Court. He urged that the trial Court had granted unconditional leave to defendant to the present petitioner and he choose not to appear and contest the suit; despite best of the opportunities made available to him by the trial Court. It is after lapse of six months that the Court proceeded in absence of his written statement. According to the learned advocate, the total decretal outstanding due is more than Rs. 2.20 lacs - since the decree is for principal amount of Rs. 1.15 lacs with interest calculated @ 8% per annum thereon. According to him, nearly seven years have passed since passing of the decree and the judgment creditor has been deprived of the fruits of the decree.
On thus having heard learned advocates for the parties and on having considered the material available on record, this Court is of the opinion that the ad interim relief granted earlier requires to be confirmed till the final hearing of Regular Civil Appeal No. 2 of 2010 on its own merits; for the reasons to be followed hereinafter.
As can be noted from the material on record, after the trial Court passed judgment and decree against the present petitioner - judgment debtor, he approached the appellate forum by filing an appeal. As can be also noted from the record, the petitioner preferred Special Civil Application No. 13573 of 2011 before this Court seeking direction for deciding the stay application on merit. After calling the record, this Court stayed the order of civil prison passed by the learned 2nd Addl. Civil Judge, Gandhidham dated 29th August 2011 and directed the appellate court to decide the same. In the meantime, the appellate Court decided the stay application, rejecting the request of staying execution of the decree passed by the trial Court. Dismissal of the said application of the present petitioner dated 13th September 2011 is challenged in the present petition.
The law provides for the appellate Court to stay execution of the decree for sufficient cause. As can be also noted at this stage, the appellate had already been directed to furnish security for the due performance of such decree and by virtue of such direction, he already has provided bank guarantee to the tune of Rs. 1.15 lacs. It is the case of the petitioner that three cheques were issued by the petitioner and the same were not presented before the bank and the respondent instead instituted a Summary Suit against the petitioner. It is averred by the petitioner that without presenting the cheques, suit could not have been filed. Although as can be made out from the record, opportunities were made available to the petitioner, yet when he has challenged the judgment and decree before the appellate forum within the time provided under the law with arguable case, he must have an opportunity to contest the same on merit. In the opinion of this Court, on having had a case to contest on merit, it would not be desirable to reject the application of the petitioner without availing opportunity to contest the appeal on merit. As the execution of the decree is already stayed by ad interim order of this Court dated 14th November 2011 and as the appeal is peremptorily fixed for hearing in the month of August 2012 by the appellate Court, it would be in the fitness of things to confirm the ad interim relief granted in favour of the present petitioner and direct the appellate Court at Gandhidham to expeditiously hear and decide Regular Civil Appeal No. 2 of 2010.
Since both the sides have agreed to cooperate; particularly from the petitioner's side it has been assured of not seeking any adjournment at the time of hearing of the appeal on merit, this petition is being allowed by directing the lower appellate Court to hear appeal as expeditiously as possible but not later than four months from the date of receipt of this order.
At this stage, learned advocate Shri Thakker urged that since the decree is of the year 2009 and a direction contains in decree for payment of interest @ 8% per annum on the decretal amount, additional amount be directed to be furnished by way of bank guarantee. Considering entire gamut of facts and circumstances, respondent is directed to furnish additional bank guarantee to the tune of Rs. 50,000/= [Rupees fifteen thousand only] before the trial Court on or before 30th July 2012.
With these observations and directions, this writ petition succeeds. Ad interim relief granted earlier stands confirmed. Rule is made absolute in the above terms.
Direct service is permitted.
{Ms.
Sonia Gokani, J.} Prakash* Top