PIAREY LAL KAPANI Vs. BASHESHAR NATH

JUDGEMENT

(1.) The facts relevant to this application under Order XLV Rule 13 and other provisions of the Civil Procedure Code are that on the 10th of October 1960 Piarey Lal Kapani obtained a decree against respondent Basheshar Nath for Rs. 1,96,080/- and costs on the basis of a pronote. The defendant filed a regular first appeal in this Court which was decided on the 8th of December 1961 by G. D. Khosla, C. J. and Bedi, J. who accepted the appeal and dismissed the plaintiff's suit.

(2.) Against this order Piarey Lal Kapani has filed an application under Article 133(1)(a) and (b) of the Constitution for leave to appeal to the Supreme Court, and there is no doubt that since the amount directly involved throughout is considerably in excess of Rs. 20,000/- and the decree of this Court was one of reversal, the leave to appeal will be granted as of right.

(3.) What we are concerned with in the application is a sum of 2,15,000/- which had been deposited during the pendency of the appeal in the lower Court as a condition of stay of execution. The plaintiff whose appeal was dismissed by this Court now seeks an order restraining the defendant-respondent from withdrawing the amount lying in the lower Court pending the decision of the appeal by the Supreme Court on grounds which may be summed up as being that if the amount is withdrawn the plaintiff will be unable to execute his decree in the event of his succeeding in the Supreme Court because of the unsound financial position of the respondent such of whose properly as he has not already sold during the pendency of the suit is heavily encumbered.