STATE OF U P Vs. AKHILESH KUMAR

JUDGEMENT

(1.) D. K. Seth, J. While admitting the appeal on an application for stay of execu tion of judgment and decree dated 7-2- 1992 passed in Land Acquisition Reference Case No. 19 of 1990, this Court on 8th January, 1993 passed an order that the appellant may deposit the entire decretal amount in the executing court within three months. In case such amount is deposited, it will be open to the respondents to withdraw half of the amount without furnishing security and remaining half of the amount upon furnish ing security to the satisfaction of the execut ing court.

(2.) A Special Leave Petition was moved before the Hon'ble Supreme Court against the said order, in which the Apex Court was pleased to stay the operation of that part of the order by which 50% was to be withdrawn without furnishing security, to the extent that the appellant need not deposit the said half of the amount. But ultimately while disposing of the Special Leave Petition, the Apex Court directed the deposit of the balance 50% amounting to Rs. 12,52,202. 15 which may be withdrawn by the respondent upon furnishing bank guarantee. Admitted ly the entire sum has been deposited. Learned counsel for the respondent admits that the respondent has withdrawn the en tire sum in terms of the order passed by the Apex Court, namely by furnishing security he has withdrawn 50% and by furnishing bank guarantee he has withdrawn 50%. The entire amount deposited has been withdrawn. The respondents on the other hand claim that the said amount should include interest solatium amounting to Rs. 4,34,601. 17 and had accordingly ap proached the executing court for direction to the appellant to deposit the said amount. By an order dated 9-8-1996, the executing court directed the appellant to deposit the said amount. Against the said order dated 9th August 1996, the appellant had preferred an appeal being First Appeal No. 430 of 1994. By order dated 21-3-1996, the said appeal was dismissed as incompetent by this Court on the ground that the said order was an order of interpretation of the award and not an award itself, therefore, no appeal is maintainable under Section 54 of the Land Acquisition Act against the said order. In the said order, liberty was granted to the appellant to approach this Court during pendency of the appeal against the award itself. Accordingly the present application has filed in the appeal for stay of the opera tion of the said order dated 9-8-1996.

(3.) THE learned counsel for the respon dent insists that in case the entire amount is not directed to be deposited in that event appellant should furnish adequate security as provided in Order XLI, Rule 1 (3) of the CP. C. Sri P. K. Bisaria. learned counsel op poses the said prayer and contends that by reason of Order XXVII, Rule 8-A the ap pellant is not required to furnish security m terms of Order XLI, Rule 5 of the Code.