Prabhudayal vs Rambabu Agrawal on 21 September, 2011

                     F.A.No.505/2009
                     F.A.No.519/2009




21.9.2011
       Shri Sanjay Dwivedi, counsel for plaintiff/appellant.
       Shri Avinash Zargar, counsel for defendants/respondents.

I.A.No.8263/2009 of F.A.No.505/2009 & I.A.No.8459/
2009 of F.A.No.519/2009.

These appeals are filed against the judgment and decree
dated 7.5.2009 passed by IInd Additional District Judge to the Court
of Ist Additional District Judge, Bhopal in Civil Suit No.335-A/2007.
The plaintiff and defendants both have challenged the same
judgment and decree in these appeals.

Shri Avinash Zargar, counsel appearing for defendants
submitted that on 1.9.2009 an order was passed by which the
defendants were directed to deposit entire cost amount incurred in
the Court below within a period of thirty days and on such condition
execution of judgment and decree was stayed. It is submitted that
a contradictory order was passed in F.A.No.505/2009, so the
aforesaid cost could not be deposited. It is submitted that the
orders may be clarified, so that the defendants may comply with the
order dated 1.9.2009 in F.A.No.519/2009.

The plaintiff/appellant opposed the aforesaid contention and
submitted that infact there is no conflict between the orders and
both the orders are operating in separate fields and the
defendant/appellant of F.A.No.519/2009 ought to have complied
with the order dated 1.9.2009 in letter and spirit.

To appreciate the aforesaid contention of the parties, it would
be appropriate if order dated 3.8.2009 in F.A.No.505/2009 and order
dated 1.9.2009 in F.A.No.519/2009 are referred, which reads thus :-

“3.8.2009

Shri Sanjay Dwivedi, for the appellant.
Appeal is admitted for hearing.
Issue notice of the appeal as well as of
I.A.No.8263/09 to the respondents on payment
F.A.No.505/2009
F.A.No.519/2009

of process fee within a week.

Call for the records.

In the meanwhile, till the next date of
listing, recovery of interest @ 12% per annum
and the direction to the appellant to deposit a
sum of Rs.6,23,000/- shall remain stayed.

List for hearing alongwith the records.
Certified copy as per rules.”

“1.9.2009
Shri Alok Aradhe, learned Sr. Adv., with
Shri Abhishek Gulatee, counsel for appellant.

Admit.

Issue notice to the respondents. Steps
within a period of one week by Regd. A/D mode.

I.A.No.8459/2009 under Order 41
Rule 5 C.P.C.

Issue notice of this application to the
respondents. Steps within a period of one week
by Regd. A/D mode.

Till further orders, execution of judgment
and decree passed by the Court below shall
remain stayed on following terms :-

1. Appellant to furnish security as required
under Order 41 Rule 5 C.P.C., to the satisfaction
of trial Court I.A.No.8263/2009 that the
appellant shall abide the judgment, decree or
order, as may be passed in this appeal.

2. Appellant to deposit entire costs incurred
in the Courts below within a period of thirty days
from today.

Record of the Court below be sent for.
C.C., as per rules.”

From the perusal of aforesaid orders, it is apparent that in
F.A.No.505/2009 on the appeal of plaintiff, direction of the trial Court
in respect of deposit of remaining amount alongwith 12% interest
were stayed. So far as F.A.No.519/2009 on a appeal by defendants
the execution of judgment and decree was stayed on furnishing
security, as is required under Order 41 Rule 5 C.P.C., and it was
directed to deposit entire cost incurred in the Court within a period of
thirty days. From the perusal of aforesaid orders, it is apparent that
both the orders are operating in separate fields and are not
conflicting to each other.

In these circumstances, we clarify the order and direct that the
F.A.No.505/2009
F.A.No.519/2009

defendants against whom decree has been passed shall comply with
the order dated 1.9.2009 within a period of two weeks from today.
So far as F.A.No.505/2009 is concerned, the order dated 3.8.2009 by
which the direction of the trial Court directing deposit of remaining
sale price with 12% interest shall remain stayed. Both the orders are
accordingly confirmed and shall continue till further orders.

I.A.No.8263/2009 & I.A.No.8459/2009 are accordingly
disposed of.

Both the appeals be listed for analogous hearing.
Parties to take steps for preparation of paper books, as is
required under Chapter 16 of the High Court of Madhya Pradesh
Rules, 2008.

C.C., as per rules.

      (Krishn Kumar Lahoti)                        (Smt.Vimla Jain)
           JUDGE                                      JUDGE

M