Gujarat High Court
State Of Gujarat vs Zaverchandpragjibhaivekariya on 2 May, 2019
Author: B.N. Karia
Bench: B.N. Karia
C/SA/377/2018 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT
OF AMOUNT) NO. 1 of 2019
In R/SECOND APPEAL NO. 377 of 2018
=============================================
ZAVERCHANDPRAGJIBHAIVEKARIYA Versus STATE OF GUJARAT ============================================= Appearance:
KISHAN Y DAVE for the PETITIONER(s) No. MS ASMITA PATEL, AGP for the RESPONDENT(s) No. ============================================= CORAM: HONOURABLE MR.JUSTICE B.N. KARIA Date : 02/05/2019 IA ORDER By preferring this application, applicant has prayed to allow this application and permit the applicant to withdraw the money deposited by the respondent.
Heard learned advocate for the applicant and learned AGP for the respondent.
Learned advocate for the applicant submitted that as per the order passed by this Court in Second Appeal No.377 of 2018 on 04.04.2019, amount was deposited by the respondent. That, the respondents have challenged the judgment and decree dated 13.07.2017 passed by the learned Additional District Judge, Amreli in Regular Civil Appeal No.11 of 2012 confirming the judgment and decree dated Page 1 of 5 Downloaded on : Sun Jun 30 21:41:57 IST 2019 C/SA/377/2018 IA ORDER 09.05.2012 passed by the learned 2nd Additional Senior Civil Judge, Amreli in Special Civil Suit No.5 of 2006. It is further submitted that in the suit, amount of Rs.3,80,390.34 paisa with interest @ 18% per annum was awarded to the applicant.
That, in appeal preferred by the respondents, interim relief was granted till the next date of hearing subject to depositing the decretal amount of Rs.3,80,390.34 paisa along with interest @ 18% per annum from the date of filing of the suit till the realization of the amount as ordered by the trial Court. That, the applicant is aged about 82 years and after passing of judgment and decree by the trial Court and confirmed by the appellate Court, the applicant has not received any amount from the respondents as ordered by the Court. That, at the age of 82 years, he is facing great financial difficulty to maintain his family. Hence, it is requested by learned advocate for the applicant to permit the applicant to withdraw the amount deposited by the respondents before the registry of this Court.
From the other side, learned AGP has strongly objected for permitting the applicant to withdraw any amount and argued that the judgment and decree passed by the trial Court and confirmed by the first appellate Court are challenged in the second appeal preferred by the respondents. Page 2 of 5 Downloaded on : Sun Jun 30 21:41:57 IST 2019
C/SA/377/2018 IA ORDER That, there is possibility of succeeding in the appeal preferred by the respondents. In case of succeeding in the appeal, it would be difficult for the respondents to get back the amount of withdrawal from the applicant deposited by the respondents before the registry of this Court on 28.03.2019 and requested to dismiss the application.
Having perused the facts of the case and submissions made by learned advocates for the respective parties, it appears that the judgment and decree was passed by the learned 2nd Additional Senior Civil Judge, Amreli in Special Civil Suit No.5 of 2006 on 09.05.2012 awarding an amount of Rs.3,80,390.34 paisa together with interest @ 18% per annum to the applicant. That, the said judgment and decree was challenged by the respondents before the District Court, Amreli by preferring Regular Civil Appeal No.11 of 2012 whereby appeal came to be dismissed by the learned Additional District Judge, Amreli on 13.07.2017 confirming the judgment and decree passed by the trial Court. While preferring the second appeal before this Court, conditional order was passed by this Court granting interim relief in terms of paragraph 7(B) till the next date of hearing subject to depositing decreetal amount of Rs.3,80,390.34 paisa along with interest @ 18% per annum from the date of filing of the Page 3 of 5 Downloaded on : Sun Jun 30 21:41:57 IST 2019 C/SA/377/2018 IA ORDER suit till the realization of the amount as ordered by the trial Court. Accordingly, the respondents have deposited an amount of Rs.11,49,601/- before the Registry of this Court by A/c payee cheque on 28.03.2019. It appears that the amount in dispute as deposited by the respondents was in connection with the gratuity as well as commuted pension as prayed by the applicant in the suit. That, the competent authority i.e. Executive Engineer, Amreli on 29.03.2019 wrote a letter to the Office of the Government Pleader, High Court Complex and requested to deposit cheque for the sum of Rs. 11,49,601/- with a request not to pay the amount to the applicant without permission of the Court.
Considering the facts that the applicant is aged about 82 years and litigation was started before a long time i.e. in the year 2006 and yet not ended, this Court is of the view that as the applicant is facing financial difficulty at the age of 82 years, he should be permitted to withdraw the part amount deposited by the respondents. Therefore, the applicant shall be permitted to withdraw 30% amount from the amount deposited by the respondents before the registry of this Court. The applicant shall be paid amount of 30% deposited by the respondents with the registry of this Court by an A/c payee cheque forthwith.
Page 4 of 5 Downloaded on : Sun Jun 30 21:41:57 IST 2019
C/SA/377/2018 IA ORDER In case of succeeding in the appeal preferred by the respondents, amount withdrawn by the applicant shall be refunded to the respondents along with interest as ordered by the Court without fail and respondents would not be needed to file any suit for recovery of the amount.
Accordingly, the present civil application is allowed and stands disposed of.
(B.N. KARIA, J) NEHA Page 5 of 5 Downloaded on : Sun Jun 30 21:41:57 IST 2019