1. The present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicants-original defendants challenging the impugned order passed by the learned executing Court-learned Civil Judge (Senior Division), Veraval below Exh. 1 dated 04/11/2004 in Special Execution Petition No. 23/2001 by which the learned executing Court, pending final decision in Special Execution Petition No. 23/2001, has directed the applicants-original defendants to deposit a sum of Rs. 5 lakhs within a period of 30 days, out of which Rs. 3 lakhs is to be paid to the respondent- original plaintiff and further directing the applicants-original defendants to place on record the statement with respect to the amount, which the respondent-original plaintiff would be entitled to, within two months and thereafter to deposit the entire amount, which might be found to be due and payable in the execution Court and thereafter further order shall be passed.
2. Considering the fact that the main Execution Petition is still pending for final disposal before the learned executing Court and even the aspect whether the respondent-original plaintiff is entitled to the consequential benefits pursuant to the judgment and decree passed by the learned appellate Court modified vide order dated 11/09/2002 in Civil Miscellaneous Application No. 1/2002 and entitlement of consequential benefits of granting declaration in terms of paragraph 9(A) of the suit is yet to be considered by the learned executing Court, Shri L.R. Pathan, learned advocate appearing on behalf of the respondent-original plaintiff has stated at the bar that keeping all the questions open to be decided by the learned executing Court he has no objection if the impugned order is quashed and set aside. Shri Pathan, learned advocate appearing on behalf of the respondent- original plaintiff does not invite any further reasoned order while quashing and setting aside the impugned order. Under the circumstances, this Court is not assigning any further reasons while quashing and setting aside the impugned order.
3. In view of the above stand taken by Shri Pathan, learned advocate appearing on behalf of the respondent-original plaintiff, the present Civil Revision Application is allowed and the impugned order dated 04/11/2004 passed by the learned executing Court below Exh. 1 in Special Execution Petition No. 23/2001 is hereby quashed and set aside. Now, the learned executing Court to decide and dispose of Special Execution Petition No. 23/2001 in accordance with law and on its own merits and all the contentions/defences, which might be available to the respective parties, are kept open. It will be open for the applicants-original defendants to submit the objection as provided under Section 47 of the Code of Civil Procedure and the same shall be considered by the learned executing Court in accordance with law and on its own merits. However, it is made clear that this Court has not expressed anything on merits in favour of either parties and it is ultimately for the learned executing Court to consider the decree passed by the learned trial Court, which is modified pursuant to the order dated 11/09/2012 in Civil Miscellaneous Application No. 1/2002, in accordance with law and on its own merits considering the objections that may be filed by the applicants. Such objections, if any, shall be filed within a period of four weeks from today. As the impugned order is set aside, whatsoever amount is deposited by the applicants- original defendants, if at all deposited pursuant to the order passed by this Court dated 13/05/2005 and if at all it is withdrawn by the respondent-original plaintiff, it goes without saying that the same shall be subject to the ultimate outcome of the order that may be passed by the learned executing Court in Special Execution Petition No. 23/2001. The aforesaid exercise shall be completed within a period of six months from the date of receipt of the present order. Rule is made absolute to the aforesaid extent. No costs.
(M.R. SHAH, J.) siji