1 941-CA 1141-2020.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CIVIL APPLICATION NO. 1141 OF 2020

IN

SECOND APPEAL NO. 487 OF 2019

Rajyog Traders

Through its owner & Proprietor

Manisha Kanhaiyalal Chopada

Through General Power of Attorney Holder

Kanhaiyalal Manikchand Chopda

.. Applicant

Versus

Deshmukh Poultry Farm

Through its Proprietor

Shri Bhanudas Sundarbapu Deshmukh

.. Respondent

Mr. Abhaykumar D. Ostwal, Advocate for the Applicant.

Mr. U. S. Malte, Advocate for Respondent.

CORAM : BHARAT P. DESHPANDE, J.

DATED : 26^th AUGUST, 2022.

PER COURT:-

1.

This is an application filed by the applicant/original respondent in the

second appeal.

2.

Heard Mr. Ostwal, learned counsel for the applicant and Mr. Malte,

learned counsel for the respondent.

3.

Vide order dated 21.08.2019 passed in Second Appeal No. 487 of

2019, this Court directed the present respondent/appellant to deposit an

amount of Rs. 9,00,000/- (Rs. Nine Lakh only) on or before 17.09.2019 for

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grant of stay to the warrant issued for recovery of the amount awarded in

favour of the applicant by both the Courts below. Accordingly, an amount of

Rs. 9,00,000/- (Rs. Nine Lakh only) was deposited in this Court on

13.09.2019.

4.

Learned counsel for the applicant submits that the challenge in the

present second appeal is against money decree and the total amount

awarded by the learned Courts below is more than Rs. 20,00,000/-

(Rs. Twenty Lakh only) including interest as on date. The appeal is pending

for admission. The parties are the business women and required money for

their transactions. The decree is a money decree and the applicant is

deprived of fruits of such decree. Since the respondent was directed to

deposit Rs. 9,00,000/- (Rs. Nine Lakh only) on condition of grant of stay, the

applicant is ready and willing to withdraw such amount on any condition.

5.

Learned counsel for the respondent opposed the application on the

ground that the appeal could be heard finally at the stage of admission itself

and there are sufficient grounds for the respondent to succeed in the second

appeal.

6.

After hearing learned counsel for the parties, it is clear that matter is

pending from the year 2019 for admission. Challenge before this Court in

the second appeal is against money decree. Conditional order was passed in

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regard to stay of warrant of attachment. Special Darkhast No. 11/2017 was

filed by the applicant for recovery of the decreetal amount. The Executing

Court even issued warrant of attachment. On conditional order passed by

this Court such warrant was stayed.

7.

Though the second appeal is filed in the year 2019, the same is not

admitted yet. Since the matter is not admitted, the applicant could be

permitted to withdraw the amount on furnishing bank guarantee of the like

amount so that the interest of both the parties could be protected. An

amount of Rs. 9,00,000/- (Rs. Nine Lakh only) deposited in this Court in

only part of the money decree. In view of the above findings, the applicant

could be allowed to withdraw the amount on condition of furnishing bank

guarantee to that effect. Hence, the following order.

ORDER

(I)

The application stands allowed.

(II) The applicant is permitted to withdraw an amount of

Rs. 9,00,000/- (Rs. Nine Lakh only) deposited by the respondent in

this Court with interest till date if any on furnishing bank guarantee of

the like amount to the effect that in case, the second appeal is

allowed and the applicant is directed to deposit/refund such amount ,

the same shall be refunded as and when called.

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