Uttarakhand High Court
SA/68/2018 on 9 September, 2021
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S.A. No. 68 of 2018
Hon'ble Manoj Kumar Tiwari, J.
Mr. V.B.S. Negi, Senior Advocate,
assisted by Mr. Siddhartha Sah, Advocate
for the appellants/applicants.
Mr. S.K. Jain, Senior Advocate,
assisted by Mr. Siddhartha Jain, Advocate
for respondent.
Heard learned counsel for the parties
on I.A. No. 12986 of 2021.
A money recovery suit was filed by the
respondent against the appellants, which
was decreed by learned trial Court vide
judgment dated 03.04.2001 and appellants
were directed to pay a sum of ` 85,868.65
with 2% monthly interest, compounded on
monthly basis. Their appeal filed under
Section 96 C.P.C. against the decree passed
by learned trial Court having been
dismissed, appellants have now approached
this Court.
A Coordinate Bench of this Court vide
order dated 20.08.2019 condoned the delay
of 1302 days in filing this Appeal subject to
payment of cost of ` 1 lakh. Thereafter, on
26.11.2019, an interim order was passed by
Coordinate Bench of this Court in favour of
the appellants to the following effect:-
"9. Though having admitted the second
appeal on the above substantial question
of law. The court is also conscious of the
fact that the effect of rejection of delay
condonation application has resulted into
an affirmation of a money decree as
rendered on 03.04.2021. In such an
eventuality, the recovery proceedings in
pursuance to the Trial Court decree
impugned shall be kept in abeyance till
the next date of listing only subject to the
condition that the appellant deposits 50
percent of decretal amount in compliance
to the provisions contained under Order
41 Rule 5 within four week from the date
of the certified copy of this order.
10. Summon the lower court record. No
notices are required to be sent to the
respondents as the respondent has
already put appearance as caveator.
However, an interim protection granted
above would be subject to the condition
that in case the said direction of despot of
50 percent of amount, if it is not complied
with, the interim order would
automatically be treated to have been
vacated and it would be open for the
plaintiff/respondent to seek an
appropriate remedy available to him
under law."
Learned Senior Counsel appearing for
the applicants/appellants submits that the
condition imposed in the interim order dated
26.11.2019 has been satisfied and the
entire decreetal amount has been received
by the respondents, therefore, the
execution proceedings deserve to be stayed.
Mr. S.K. Jain, learned Senior Counsel
appearing for the respondents, however,
submits that the condition imposed in the
interim order dated 26.11.2019 has not
been satisfied and a sum of ` 9.50 lakhs
only has been received by the respondents
by encashing the bank guarantee; while,
actual amount payable by the appellants
runs into several crores of Rupees, as the
decreetal amount carried compound interest
at the rate of 2% per month.
Mr. S.K. Jain, learned Senior Counsel
appearing for respondent submits that the
suit was filed on 13.06.1995 and execution
application was filed on 12.07.2005. He
submits that till filing of the execution
application, the decreetal amount had
increased to ` 8,88,494.81 due to
component of interest. He further submits
that with compound interest at the rate of
2% per month, the decreetal amount has
increased exponentially. He has further
apprised the Court that applicants/
appellants have separately challenged the
order of Executing Court, dated 05.04.2021
by filing Civil Revision No. 56 of 2021 before
this Court.
Since applicants/appellants have
separately challenged order of Executing
Court in a Civil Revision, which is pending
before this Court, therefore, the prayer
made by the appellants in the present
application cannot be granted.
Accordingly Stay Application (I.A. No.
12986 of 2021 is dismissed.
However, the Executing Court will not
be prejudiced by this order and the
execution proceedings shall be decided on
merits, in accordance with law.
(Manoj Kumar Tiwari, J.)
09.09.2021
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