ASHOK KUMAR GUPTA Vs. MUDASSAR MALLICK

JUDGEMENT

(1.) -This appeal has been preferred against the judgment and/or order dated April 4, 2000, passed by a learned Judge of this Court, whereby an application made by the decree-holders (the respondents No.1, 2 & 3 in this appeal) for withdrawal of the decretal amount to the extent of Rs.30,00,000/- lying with their Advocate-on-record deposited in a Nationalised Bank was allowed. It is not in dispute that a decree for the said sum of Rs. 30,00,000/- was passed by the trial Court by way of judgment upon admission. Against the said judgment and decree, an appeal has preferred by the judgment debtor/appellant, being A.P.D. No. 81 of 1998. The said appeal is now pending decision. In the said appeal, an application for stay of the said judgment and decree was filed at the instance of the judgment debtor/appellant and by an Order dated February 20, 1998, a Division Bench of this Court passed an order of stay of execution of the decree for a limited period. The Division Bench further directed that if bank guarantee of a Nationalised Bank to the extent of the decretal amount was furnished by the judgment debtor/appellant in favour of the Registrar, Original Side of this Court, the execution of the decree impugned would remain stayed until disposal of the appeal. Thereafter extensions to furnish such bank guarantee were prayed for at the instance of the judgment debtor/appellant and extensions were granted from time to time. Finally, by an Order dated April 29, 1998, the prayer for further extension of time to furnish the bank guarantee was rejected on the ground that despite extension having been granted, the judgment debtor/appellant had failed to furnish the bank guarantee as was directed. So, from the said Order dated April 29, 1998, it is evident that there is no order of stay granted by the Appellate Court for execution of the decree. Therefore, there is no reason why the decree-holders should not be permitted to proceed with the execution case. But there is another aspect of the matter.

(2.) When the decree-holders proceeded to execute the aforesaid money-decree passed on the basis of a judgment upon admission, a learned Judge of this Court by an Order dated June 9, 1998, passed on an application made by the Judgment debtor in the execution case, directed the judgment debtor to deposit a sum of Rs. 10,00,000/- with the Advocate-on-record of the decree-holders, Mr. Avijit Guha Roy, within a fortnight from that date, and that in default of depositing the said sum of Rs. 10,00,000/- as directed, the said application of the judgment debtor would stand rejected and the decree-holder would proceed with the execution case. Feeling aggrieved by the said Order, the Judgment debtor/appellant preferred an appeal. A Division Bench of this Court, consisting of Shyamal Kumar Sen (as His Lordship then was) and Nure Alam Chowdhury, JJ, by Order dated June 24, 1998, disposed of the said appeal, by passing the following order :-

(3.) It is now not in dispute that the said Order dated June 24, 1998, passed by the Division Bench of this Court has been duly complied with. The decretal amount is now lying with the Advocate-on-record of the decree-holders. When the money was so lying with the Advocate-on-record of the decree-holders, an application was made by the decree-holders to withdraw the aforesaid money together with all interest accrued thereon. The said application was allowed by the learned single Judge of this Court by passing the impugned judgment and order, against which the instant appeal has been preferred by the judgment debtor.