A deposit made to secure a claim does not depend on the liability of the defendants, and the court maintains strict adherence to the terms of that deposit in determining withdrawal rights.

O R D E R

1.Respondents 1 & 2 set ex parte in the proceedings.

Therefore, no notice is required to be served on them. The 3rd respondent has been served. Service complete.

2.The petitioner is the plaintiff in a suit for money. He filed an application for interim injunction as well as an application for conditional attachment of the property. The application for injunction as IA No.827/2005 was allowed, restraining defendants 2 & 3 from alienating the plaint schedule property. Thereafter, defendants 2 & 3 filed an application as IA No.126(a)/2006 for allowing them to deposit ₹46,800/- and to vacate the order of injunction. This amount was deposited to secure the plaint claim and to facilitate defendants 2 & 3 to sell the property. The suit, thereafter, was decreed as against the 1st defendant and dismissed the suit against defendants 2 & 3. The decree holder/plaintiff filed an application to withdraw the amount deposited by defendants 2 & 3. Thereafter, defendants 2 & 3 filed an application to withdraw the amount from the court below and the plaintiff filed an application to amend the decree, incorporating a relief, to appropriate the plaint claim from the amount already in deposit. The court below allowed the application filed by defendants 2 & 3 and dismissed the application filed by the plaintiff. It is challenging this common order, the petitioner has come up before this Court.

3.Though notice was not served on respondents 1 & 2, in fact, the 3rd respondent, appeared before this Court. Therefore, the 3rd defendant alone had filed an application to withdraw the amount from the court. Therefore, even without appearance of others, this Court is of the view that the revision petition can be disposed of.

4.The question to be considered is as to the legal effect of the amount deposited by defendants 2 and 3, who were subsequently found to be having no liability. According to the learned counsel for the petitioner, the amount deposited by defendants 2 & 3 is, in fact, a security offered for the suit amount and they will step into the shoes of the guarantor and therefore, if the suit happens to be dismissed against the defendants 2 & 3, they will have to honour the commitment made before the court by offering the amount.

5.I find force in the submission of the learned counsel for the petitioner that when the decree amount is secured, it is not depend upon the liability ultimately cast on the defendants. The 3rd defendant has no case that, the deposit was made on condition that in case, the suit is dismissed against them, the plaintiff cannot claim any amount so deposited.

6.It is to be noted that the suit was based on a promissory note executed by the 1st defendant. If defendants 2 & 3 have no liability, certainly, they could have filed an application to vacate the injunction against them. But, instead, they deposited the amount, which secured the suit amount, to get the injunction order vacated. In view of the fact that the deposit is not depend upon their liability, the 3rd defendant has no right to get the amount withdrawn from the court below. The remedy of the 3rd defendant is to satisfy the decree and to recover the same from the 1st defendant.

7.Therefore, the cheque application filed by the 3rd defendant is dismissed. The plaintiff filed an application for amendment of the decree. This Court is of the view that such an application is not maintainable. The petitioner's remedy is to file an execution petition to appropriate the amount already in deposit by executing the decree.

8.Accordingly, the revision petition is allowed, setting aside the order in IA No.638/2009.