1. Challenge is made in this petition preferred under Article-227 of the Constitution of India to the order passed by the learned 4th Additional Senior Civil, Palanpur dated 1st May, 2012 in Regular Execution Application No.22 of 1994, in not allowing refund in favour of the petitioner to the tune of Rs.44, 69, 989/- (Rupees Forty Four Lacs Sixty Nine Thousand Nine Hundred Eighty Nine Only).
2. Learned advocate Mr. J.D. Ajmera appearing for the petitioner has urged this Court that the order of the trial Court was confirmed in Appeal from Order No.48 of 2006 filed by the respondent-judgment debtor. The Review Application was also rejected. The Supreme Court, vide order dated 23rd February, 2012 allowed the Civil Appeal No.2458-2459 of 2012 arising from SLP (C) No.10924-10925 of 2009 wherein the request was made to set aside the sale and ordered the respondent herein to refund the amount with interest @ 18% per annum..
3. It is the say of the learned advocate Mr. Ajmera appearing for the petitioner that the respondent-judgment debtor has deposited the entire amount and though a request was made by the petitioner herein to allow withdrawal of the said amount by preferring application dated 2nd April, 2012, the trial Court, without allowing the refund of the amount, adjourned the matter on 24th April, 2012. He further urged that there was no objection from the side of respondent judgment debtor.
4. Without going into any of the contentions raised in this Petition, since there is a direction of the Apex Court, the order of the Apex Court requires to be followed. It would be apt to reproduce such a direction:
"We, accordingly, allow these appeals,set aside the order passed by the High Court as also the order passed by the Executing Court and remit the matter back to the Executing Court for fresh orders on the subject, keeping in view the observations made hereinabove. As seen above the question whether any amount is additionally recoverable from the appellants is open to be determined by the Executing Court. In case, any amount is found to be payable by the appellants, over and above the amount already deposited by the appellants, the Executing Court shall be free to direct its recovery, if necessary, by a fresh auction of the properties in question. In the meanwhile, the amount deposited by the Respondent no.2 shall be refunded to the said respondent with interest at the rate of 18% per annum from the date of deposit. The appellants shall deposit the interest component within two months from today. In case, the deposit of the amount is not made, these appeals shall stand dismissed, with costs and the order passed by the High Court shall in that event stand affirmed."
5. The trial Court is directed to observe the directions of the Apex Court in true letter and spirit .
6. With the above observations, this petition stands disposed of.
(MS SONIA GOKANI, J) chandrashekhar* Top