MANSA TEWARI Vs. SUBH NARAIN

JUDGEMENT

(1.) This appeal arises out of proceedings under Section 144, C.P.C. The necessary facts are these: Subh Narain and his two brothers, who are the first three respondents in this appeal, filed Suit No. 359 of 1961 against Mansa Tewari and two others, the present appellants, and Vishwa Nath and others, who have been impleaded as respondents second set, for possession over some agricultural plots. The suit was decreed by the trial court and that decree was upheld by the lower appellate court. The present appellants filed a Second Appeal in this Court. In the appeal they also moved an application praying that their ejectment be stayed during the pendency of the appeal On condition that a sum of Rs. 300 was deposited by the 15th of July each year beginning from July, 1965, this court stayed their ejectment, A sum of Rs. 1,500 in all was deposited in pursuance of that order.

(2.) During the pendency of the Second Appeal, the area in which the plots in dispute were situate, became subject to consolidation operation under the provisions of the U.P. Consolidation of Holdings Act, On December 10, 1969 an order was passed by this court abating the appeal and the suit. Later, on April 12, 1971 a further order (Ext. 1) was passed by this court directing that the money lying in deposit in the trial court in pursuance of the interim order passed by it, shall remain in deposit and would be paid to the party which ultimately won in the consolidation proceedings,

(3.) Before the order (Ext. 1) of this court, the present appellants moved an application under Section 144, C.P.C. for refund of the money deposited by them in pursuance of the ad interim order of this court. The trial court allowed that application and held, in its order dated May 29, 1970, that the appellants were entitled to withdraw that amount. Aggrieved by that order, the plaintiff-respondents filed an appeal which was disposed of by the lower appellate court on May 21, 1971. The lower appellate court did not consider the merits of the contention raised on behalf of the plaintiffs but held that the present appellants could not withdraw the amount in view of the order (Ext. 1) of this Court. Consequently, the present Second Appeal.