1. The present Second Appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein – original defendant No.2 to quash and set aside the impugned judgment and order dated 05/03/2012 passed by learned Appellate Court i.e. learned 5th Additional (Ad-hoc) District Judge, Bhavnagar in Regular Civil Appeal No.45 of 2011, by which, learned Appellate Court has partly allowed the said appeal preferred by the original plaintiff and quashed and set aside the order dated 12/08/2011 passed by learned Trial Court i.e. learned Additional Civil Judge, Bhavnagar below Exh.1 and Exh.5 in Regular Civil Suit No.393 of 2008 on condition that the plaintiff shall deposit Rs.2,000/- on or before 09/03/2012 in the trial court towards the cost of the defendant No.2 and the plaintiff shall appear before the learned Trial Court on 16/03/2012 without fail after deposit of the above amount in the court with amended plaint to be submitted it on the same date i.e. 16/03/2012 and the plaintiff shall also pay court fees stamp to get the summons of the suit to be served to the defendant No.2 with the copies of amended plaint and the injunction application on the same day.
2. After the matter was argued for sometime, Mr.J.T.Trivedi, learned advocate appearing on behalf of the appellant herein seeks permission to withdraw the present second appeal. However, he has requested to direct the learned Trial Court to decide and dispose of Exh.5 application at the earliest and within stipulated time as though there is award passed in favour of the appellant – bank, it is not in a position to execute the same. It is also further requested by learned advocate appearing on behalf of the appellant that liberty may be reserved in favour of the appellant to submit an appropriate application before learned Trial Court.
3. In view of the above, the present Second Appeal is dismissed as withdrawn. In the facts and circumstances of the case and as Exh-5 application has been pending since year 2008 and it is reported that the appellant-bank is not in a position to execute the award, which is passed against defendant No.1, learned Trial Court is hereby directed to finally decide and dispose of injunction application Exh.5 at the earliest but not later than three months from the date of receipt of copy of the present order. All the parties including original plaintiff are hereby directed to co-operate learned Trial Court in early disposal of Exh-5 application, which may be decided and disposed of by learned Trial Court in accordance with law and on merits. It goes without saying that it will always open for the appellant herein to submit an application before learned Trial Court, which shall be considered by the learned Trial Court in accordance with law and on merits. With this, the present Second Appeal is dismissed as withdrawn.
4. In view of the dismissal of the main Second Appeal, no order in the Civil Application and the same is also accordingly dismissed as withdrawn.
Direct service is permitted.
[M.R.SHAH,J] *dipti