MARTAND RAMCHANDRA POTDAR Vs. DATTATRAYA RAMCHANDRA POTDAR

JUDGEMENT

(1.) The Second Appeal raises two important questions of law as to whether on the facts and circumstances in this case an application for restitution is tenable and if not whether it could be treated as an application in the absence of mode of execution being stated, could be valid. The facts giving rise to these points could be briefly stated thus.

(2.) Dr. Mr. R. Potdar (the appellant), a dentist by profession, brought Civil Suit No.592 of 1960 against his elder brother for a declaration that the clinic run by them was a joint concern, that accounts be taken and that the defendants (respondent) be restrained from carrying on the profession in the name and style of "D.R. Naik and Brothers." The suit came to be instituted on October, 5, 1960. On the very day the plaintiff moved the Court for an ad interim injunction restraining the defendant from obstructing him in entering and conducting from obstructing him in entering and conducting the said clinic run in Municipal House No.40 of Nasik City. An ex parte rule was granted, but on the date fixed for the hearing of the application the parties arrived at certain terms and on the strength of the consent terms and learned trial Judge proceeded to vacate the inter in injunction, but directed the defendant to pay to the plaintiff Rs.100/- per month till the disposal of the suit. Certain other directions were given which are not relevant. This order came to be passed on February 22, 1961. The parties then proceeded to trial and the learned Judge who heard the suit finally allowed only one prayer restraining the defendant from preventing the plaintiff in taking part and conducting the clinic in dispute, but rejected the rest of the claim. However, on the interim rule which directed the defendant to make certain deposits and which were withdrawn, he intended to maintain the status quo by adding the last clause in the decree which reads thus: "No order as to the amount deposited in Court by the defendant."

(3.) The defendant preferred Regular Civil Appeal No.493 of 1962 impugning the entire decree. The learned Assistant Judge who heard the appeal, allowed it partially and modified the trial Court's decree on February 5, 1965. He declared that the joint business carried on by the plaintiff and the defendants in the name of "Dattatraya Ramchandra and Bros." had come to an end with effect from September 22, 1960. It is needless to detail out the other clauses, but on the point of the deposits made the effective order was: "The amount deposited by the defendant in Court will be refunded to him.