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Judgment
M.D. Shah, J.—The present applicant - legal heir and representative of the deceased Paliben Maganbhai Patel, original plaintiff has filed this revision application for quashing and setting aside the judgment and order dated 10.11.2006 passed by the learned 3rd Additional Senior Civil Judge, Valsad in Special Darkhast No. 28 of 2006, whereby the learned Judge has dismissed the same and further prayed to permit the applicant to execute the decree passed in Special Civil Suit No. 125 of 1986.
Heard Mr. Amit Patel, learned advocate for the applicant and Mr. M.D. Pandya, learned senior advocate for the opponents.
Mr. Amit Patel, learned advocate for the applicant has submitted that the impugned judgment and order passed by the trial Court is contrary to the facts and circumstances of the case. He has submitted that as per the order dated 25.06.1993 passed by the Division Bench of this Court [Coram: Hon''ble Mr. Justice M. B. Shah & Hon''ble Mr. Justice J.M. Panchal], the amount paid by the opponents to the original plaintiff from the year 1993 to 2006 is an amount of interest which was paid in monthly installment on the amount of "deposit" of Rs. 2,65,492-00 i.e. decretal amount with 19% simple interest kept by the opponents in the name of the original plaintiff for ten years. He has submitted that the trial Court has committed an error while considering that as the opponents had paid Rs. 4,94,478-00 to the original plaintiff in the form of monthly interest on the amount of deposit of Rs. 2,65,492-00 from 1993 to 2006, the opponents had paid more amount to the plaintiff than the decretal amount. He has relied upon the decision of this Court in the case of Atul Hasmukhlal Shah v. Deboo Bross and Ors. reported in 2006 (1) GLH 688. He has submitted that the impugned judgment and order of the trial Court is required to be quashed and set aside in the interest of justice.
Having considered the rival submission, averments made in the application and having gone through the impugned judgment and order passed by the trial Court, this Court is of the view that it is an admitted fact that the First Appeal was preferred by the opponents against the judgment and order passed by the trial Court and during the pendency of the appeal, interim relief was granted staying the execution of the decree passed in the suit with a condition that the opponents should deposit the decretal amount with accrued interest in the name of the original plaintiff for ten years and should pay 15% interest per annum to the original plaintiff on the amount of deposit every month and the same was received by the original plaintiff every month. Thereafter, the said appeal was dismissed and the original plaintiff filed Execution Application before the trial Court. As per the decree passed by the trial Court, the present applicant is entitled to get the decretal amount along with interest at the rate of 9% per annum. The trial Court has calculated the same and found that the original plaintiff has already received Rs. 4,94,478-00. It is also observed by the trial Court that as per the order of this Court, the opponents have deposited Rs. 20,000/- as costs, which was also received by the original plaintiff at the relevant time. Taking into consideration this aspect, the trial Court has rejected the Execution Application. It is not required to be considered, in pursuance of the order passed by the Division Bench of this Court, as to whether the applicant has received the amount or not. It is only required to be considered that as per the impugned judgment and order, whether the amount has been received by the decree holder or not and it is rightly observed by the trial Court that the decree holder has received the decretal amount along with interest. The decision cited by the learned advocate for the applicant is totally different and the same is not applicable to the facts of the present case and, therefore, the same is not of any assistance to the applicant.
In view of the above, this revision application is dismissed. Rule is discharged.