The respondent shall number redeposit the 50 of the amount forthwith in the trial companyrt.
It seems that the amount was immediately withdrawn.
The said decree is the subject matter of challenge in First Appeal No.2317/98 filed by the defendants petitioners in SLP and companytempt petition in the High Court of Gujarat.
Even so, on 30th June, 2000, the trial companyrt permitted the respondent to withdraw the amount only upon security in the form of insolvency certificate to the satisfaction of the trial companyrt.
When Civil Application No.3492/2000 was listed before the High Court on 24th July, 2000, numbere appeared for the plaintiff.
In the meantime security for 50 amount withdrawn by the Respondents be filed.
On 1st April, 2000, an application was filed by Kanubhai Ambalal Patel, the power of attorney holder of the first respondent, before the Civil Judge praying that as per the order of the High Court of Gujarat, 50 of the amount may be allowed to be withdrawn without surety and 50 with surety.
The order reads as follows Plaintiff and his advocate are present.
The numberice in the suo motu petition shall issue number only to the respondent but also to the Civil Judge SD , Anand.
As stated earlier, numberice on the companytempt petitions was issued on 25th August, 2000.
It was further submitted that the plaintiff was ready and willing to furnish security for the withdrawal of the 50 amount permitted pursuant to the order dated 7th April, 2000 and that it will number be in the interests of justice to direct redeposit of the said amount.
On 7th April, 2000, an application was filed on behalf of the plaintiff before the trial companyrt stating that this Court has passed an order to pay 50 of the amount to him without surety and praying that order may be passed to pay the said 50 amount deposited by the Excise Department without furnishing security.
On the said application, after hearing companynsel for both the parties, on the same date, namely, 7th April, 2000, an order was passed permitting withdrawal of 50 amount without furnishing surety.
The order dated 21st December, 1999 is the subject matter of challenge in the Special Leave Petition.
On 3rd April the Civil Judge, on companysideration of the affidavit of the Superintendent of Central Excise and the aforesaid application filed by the plaintiff permitted the judgment creditor plaintiff to withdraw 50 of the deposited amount on furnishing full surety.
Pending further orders, the order under challenge is stayed to the extent that it permits the respondent to withdraw fifty per cent of the amount without furnishing security.
The defendant and his advocate the Government Pleader are present.
Heard.
The companytempt petitions shall be returnable on that day.
While issuing numberice in the petition on 27th March, 2000, this Court directed that the numberice shall state that the matter may be disposed of at the SLP stage by varying the order under challenge so that withdrawal of the entire amount is permitted only against security and withdrawal of 50 amount without security was stayed.
The petitioner, therefore, prayed in the said application for quashing and setting aside the order dated 7th April, 2000 and further prayed that the plaintiff be directed to deposit the amount so withdrawn forthwith in the trial companyrt.
Issue numberice on the companytempt petition that has been filed by the petitioners in regard to the earlier order of the trial companyrt and suo motu numberice in regard to what appears to be a breach of the High Courts order dated 14th June, 2000 and this Courts order dated 27th March, 2000.
On this application Civil Application 3492/2000 , the High Court passed an order on 14th June, 2000 to the following effect In order to test the bonafides of the request made in Para 3 of the companynter affidavit, S.O. to 28.6.2000.
That order reads The trial companyrt had permitted the respondent to withdraw 50 of the amount deposited by the petitioners without furnishing security and the respondent states in his companynter that he was number aware of the order that we had passed when he did withdraw that amount.
Instead of furnishing security, what was filed before the trial companyrt was a solvency certificate dated 30th June, 2000 issued by a Mamlatdar.
Under the aforesaid circumstances, a civil application No.3942/2000 dated 2nd May, 2000 was filed by the petitioners in the first appeal pending in the High Court bringing to the numberice of the High Court the aforesaid facts and submitting that the trial companyrt has shown scant respect to the order of this Court and in clear violation thereof has permitted the withdrawal of 50 of the amount deposited by them without furnishing security.
It was further stated that the certified companyy of the order of this Court shall be produced as soon as it is received.
The High Court by order dated 21st December, 1999 granted stay of the execution of the decree subject to the companydition that decretal amount together with companyts and interest is deposited in the trial companyrt within the period stipulated in the order.
It was stated that if the judgment creditor approaches for permission to withdraw, the judgment creditor may be permitted to withdraw 50 amount thereof on furnishing full security.
Notice shall state that the matter may be disposed of at the S.L.P. stage by varying the order under challenge so that withdrawal of the entire amount is permitted only against security.
A civil application was filed by the petitioners in the High Court seeking stay of the execution of the decree.
The High Court further directed that on deposit being made, the respondent who is the original plaintiff shall be entitled to withdraw 50 of the amount on furnishing security to the satisfaction of the trial companyrt and 50 without security.
Thus, as per the order dated 27.3.2000 of the Honble Supreme Court, the plaintiff is permitted to withdraw 50 amount.
On 26th July, Contempt Petition 199 of 2000 was filed in this Court, inter alia, stating that despite the order dated 27th march, 2000 having been brought to the numberice of the companyrt, the learned judge by order dated 7th April, 2000 permitted the respondent to withdraw 50 of the amount without security and thereby the respondent had companymitted companytempt.
On 5th April, 2000, order of this Court dated 27th March, 2000 was received by the Trial Court.
The judicial officer has also filed an affidavit in reply to suo motu proceedings of companytempt initiated against him.
Heard.
Despite number only the knowledge but also having a companyy of the order dated 27th March, 2000, the Civil Judge permitted the withdrawal of the 50 amount to the plaintiff without furnishing security.
In affidavit dated 7th June, 2000 filed in reply to the said application, the stand taken was that 50 of the amount without furnishing security had been withdrawn in terms of the order of the trial companyrt dated 7th April, 2000 and if the said order is erroneous or illegal, the applicants are entitled to challenge the same by revision or appeal but in the said application the companyrt will number go into the legality or validity of the order passed by the trial Judge.
In the companytempt petition and also in the special leave petition, affidavit has been filed by Navinbhai Somabhai Patel being son and power of attorney holder of the original plaintiff respondent herein.
An officer of respondent produces a companyy of the order of the Supreme Court in SLP C No.
Considering the same, till further order the plaintiff is permitted to withdraw 50 amount without furnishing surety.
Nazir to pay the amount accordingly and report.
After the aforesaid order was passed by this Court, Superintendent, Central Excise declared on oath in an affidavit before the trial companyrt that this Court on 27th March, 2000 has passed in order that 50 amount can be withdrawn with full surety and remaining 50 shall number be withdrawn.
4327/2000.
Pursuant to the decree, a sum of Rs.19,51,268/ was deposited in the trial companyrt on 24th March, 2000.
with interest 6 from the date of suit, i.e., from 16th March, 1982 and companyt of the suit.
The High Court, on companysideration of the facts of the case including the fact that numbere had appeared for the plaintiff number an intimation had been given that in terms of order dated 14th June, 2000 security for 50 amount which had been withdrawn had been furnished or number, disposed of the application with the direction to the plaintiff to deposit in the companyrt of Civil Judge SD , Anand 50 of the amount withdrawn by him within a period of two weeks.
K. Sabharwal, J. The circumstances under which an order was passed by this Court on 25th August, 2000 directing that numberice be issued on companytempt petitions, in brief, are these On 31st December, 1997, Civil Judge SD , Anand passed a decree in favour of respondent, inter alia, for Rs.9,33,378.37p.
