SHOES N SHAPES Vs. J K TRADERS

JUDGEMENT

(1.) This is an application filed by the appellant praying for leave to withdraw the amount of Rs.8 lacs which had been deposited by him on 6.4.2006 by means of a pay order dated 6.4.2006. The appellant filed an appeal under Section 96 of the Code of Civil Procedure, 1908 against the judgment and decree granting recovery of a sum of Rs.9,48,879/- together with interest @ 18% per annum under the provisions of Order 37 of the Code of Civil Procedure dated 24.10.2005 passed by the learned Additional District Judge, Delhi in Suit No. 98/2005, in which the appellant had filed an application for leave to defend under Order 37 Rule 3 (5) of the CPC. Finding no substance in the defence of the appellant, the learned Trial Court dismissed the application for leave to defend and passed the decree in question. The above appeal was finally disposed of by judgment dated 10.10.2006 passed by a Division Bench of this Court in RFA No. 108/2006. The relevant part of the judgment reads as under:-

(2.) During the pendency of the appeal, vide an interim order dated 15.2.2006, the court had granted conditional stay of the decree, while directing the appellant to deposit a sum of Rs. 8 lacs in the Court within a period of 8 weeks from the date of the passing of the order. The interim order dated 15.2.2006 reads as under:-

(3.) Having succeeded in the appeal on merits the appellant-applicant has filed the present application for withdrawal of the said amount. According to the applicant the leave to defend would be deemed to have been granted unconditionally and as such the amount deposited in terms of the interim order dated 15.2.2006 has to be withdrawn by the applicant. The prayer made in the application is opposed by the non-applicant while arguing that in view of the interim order passed by the Court, the applicant has no right to withdraw the said amount and the amount should remain deposited till the suit is decided by the learned Trial Court in accordance with the law.