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CA/7392/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR DIRECTION No. 7392 of 2011
In
FIRST
APPEAL No. 4942 of 2010
=========================================================
LEGAL
HEIR OF MAHESH TRIKAMBHAI BHADRA, USHABEN WD/O MAHESH - Petitioner(s)
Versus
PASCHIM
GUJARAT VIJ COMPANY LIMITED, THROUGH CHIEF ENGINEER - Respondent(s)
=========================================================
Appearance
:
MR
PREMAL S RACHH for
Petitioner(s) : 1,
MR DIPAK R DAVE for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 09/09/2011
ORAL
ORDER
Rule. Mr. DR Dave,
Ld. Advocate appears and waives service of rule on behalf of the
opponent.
2. Considering the
facts and circumstances of the case and with consent of both the
sides, the application is taken up for final hearing today.
3. The applicant,
who happens to be respondent in the above referred appeal, filed this
application praying that the amount at present lying in fixed deposit
in the bank may be disbursed in appropriate proportion to the
applicant original respondent. It transpires that while admitting the
above referred First Appeal on 4/3/2011, in the civil application
being Civil Application No. 1995/2011, the ad-interim relief was
granted staying the execution and further implementation of the
impugned judgment and decree rendered by the trial Court, on the
condition that the opponent herein, who was the appellant, shall
deposit the entire decretal amount with costs and interest before the
trial Court. Pursuant to that order, it transpires that the opponent
– appellant deposited the said amount before the trial Court
and vide order dated 18/4/2011 passed in Civil Application for Stay
No. 1995/2011, in para. 3 following order was passed :
“3. Resultantly,
the ad-interim relief as prayed for in paragraph 5(B) of this
application shall continue till the pendency and final disposal of
the appeal. The amount, which has been deposited by the applicant –
appellant with the trial Court, shall be invested by the trial Court
in any nationalised bank in fixed deposit in the name of Nazir,
Court of Sr.Civil Judge, Jamnagar initially for the period of four
years and said period shall stand extended at the interval of every
year, till the appeal is finally heard and decided. The amount shall
be invested in fixed deposit, in
such scheme, wherein the amount of interest is accumulated.”
4. It is further
clear that on 18/4/2011 though the respondent in the appeal [the
applicant herein] was duly served with the rule, yet none appeared
for the respondent – applicant. Pursuant to that, the entire
amount deposited by the appellant – opponent ordered to be
deposited in the fixed deposit and no interim order regarding
disbursement came to be passed. Hence, this application is filed.
5. Upon perusing
the impugned judgment and order rendered by the trial Court, so also
the above referred orders as well as considering the facts and
circumstances narrated in this application and the submissions
advanced on behalf of both the sides and especially considering the
nature of the litigation, this Court is of the opinion that 25%
amount out of the amount deposited in the fixed deposit should be
permitted to be withdrawn by the applicant original respondent. It is
further made clear that the periodical interest on the fixed deposit
shall also be permitted to be withdrawn by the applicant –
original respondent.
6. For the
foregoing reasons, the application is partly allowed. The applicant
herein [original respondent] is permitted to withdraw 25% amount out
of the amount deposited in the fixed deposit and the remaining amount
shall be reinvested by the trial Court in the fixed deposit in any
nationalized bank in the name of Nazir, Court of Sr. Civil Judge,
Jamnagar, initially for a period of four years and said period shall
stand extended at the interval of every year till the appeal is
finally heard and decided. The applicant – original respondent shall
also be entitled to receive periodical interest in the fixed deposit.
Rule is made absolute accordingly. D.S.P.
[
J.C. UPADHYAYA, J.]
*
Pansala.
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