1. The present application has been preferred by the applicant, respondent of Second Appeal No. 242/2010, for an appropriate order/direction directing the executing Court i.e. the learned Principal Civil Judge (Senior Division), Palanpur to proceed further with the execution proceedings, being Execution Petition No. 19/2010 as the respondent-original appellant has not deposited the full amount as mentioned in the application.
2. At the outset, it is required to be noted that by the order dated 14/03/2011 passed in Civil Application No. 14153/2010 in Second Appeal No. 242/2010 the learned Single Judge has directed the respondent-original appellant to deposit the entire decretal amount with the learned trial Court within a period of four weeks and the applicant of Civil Application No. 14153/2010 was at liberty to withdraw the same on giving an undertaking before the Court that he shall refund the same to the respondent-original appellant in case the original respondent-original appellant succeeds in Second Appeal No. 242/2010. It appears that earlier the respondent-original appellant preferred First Appeal before this Court and the respondent-original appellant was directed to deposit the decretal amount with the learned trial Court and the learned trial Court was directed to invest the same in the Fixed Deposit and accordingly the respondent-original appellant deposited the amount of Rs.1,82,021/-, which was invested by the learned trial Court in the Fixed Deposit. It appears that thereafter the Appeal was transferred to the learned District Court, who dismissed the Appeal preferred by the respondent-original appellant, against which the respondent-original appellant has preferred Second Appeal No. 242/2010 and prayed for the interim relief by way of Civil Application No. 14153/2010 and the aforesaid order came to be passed by the learned Single Judge on 14/03/2011. It appears that thereafter the respondent-original appellant has deposited a sum of Rs. 1,82,021/- only. It is required to be noted that if the interest on Rs.1,82,021/-, which was deposited by the respondent-original appellant in the year 1994 is considered it would come to Rs. 6,76,425/- (according to the respondent- original appellant).
3. Shri Pritesh Parikh, learned advocate appearing for Shri R.C. Jani, learned advocate appearing on behalf of the respondent-original appellant has stated at the bar that the respondent-original appellant Board shall deposit a further sum of Rs. 4,94,404/-, which according to the respondent is due and payable under the decree with the learned trial Court within a period of two weeks from today. The learned advocate appearing on behalf of the applicant has stated that as such the decretal amount would be much more than Rs. 6,76,425/-.
4. Having heard the learned advocates appearing on behalf of the respective parties, the present Civil Application is disposed of by directing the respondent to deposit a further sum of Rs. 4,94,404/- over and above Rs. 1,82,021/- already deposited with the learned trial Court (which according to the respondent is the decretal amount) with the learned trial Court within a period of two weeks from today and as and when the aforesaid amount is deposited the applicant shall be permitted to withdraw the same on furnishing an undertaking, as per the order passed by this Court dated 14/03/2011 in Civil Application No. 14153/2010. However, the aforesaid withdrawal shall be without prejudice to the rights and contentions of the applicant that the decretal amount would be much more than Rs. 6,76,425/- and any dispute with regard to the decretal amount shall be decided and considered by the learned executing Court in the pending Execution Petition No. 19/2010 in accordance with law and on its own merits. The learned executing Court to proceed further with the Execution Petition and to decide and dispose of the same in accordance with law and on its own merits.
5. With this, the present Civil Application is disposed of.
Direct service is permitted.
(M.R.
SHAH, J.) siji Top