1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 14 OF 2007 IN APPEAL NO. 391 OF 2004 IN SUIT NO. 1053 OF 1981 INDUSTRIAL DEVELOPMENT BANK OF INDIA .. APPELLANT Vs. SHARAD CHHAJJURAM AGGARWAL & ORS. RESPONDENTS Mr. Pravin Samdani, Sr. Counsel along with Mr. Rishab shah a/w Mr.Kalpesh Parekh i/b M/s. Pragna Thakkar & Co. for appellant Mr. D. D. Madon, Sr. Counsel with Mr. O.S. Kutty i/b Pankaj Shah for R-1 & 2. CORAM:SMT.RANJANA DESAI & K. K. TATED, JJ. DATE: 12/12/2008 P.C. 1. This notice of motion is taken out by the original defendant 2 Industrial Bank of India praying that pending the hearing and final disposal of appeal, the execution of the judgment and decree dated 11th/12th March, 2004 be stayed. 2 2. Appeal No. 391 of 2004 was admitted on 6th July, 2004. It is stated in the affidavit in support of the notice of motion that the notice of motion was taken out in January, 2007 because there was no apprehension in the mind of the appellant that respondents 1 and 2 during the pendency of the appeal by the appellants, and cross appeal by them may make an attempt to execute the impugned judgment and decree. However, since respondents 1 and 2 are now having the decree drawn up with a view to executing the same the present notice of motion is taken out. 3. We have heard Mr. Samdani, learned counsel for the 2nd defendant. He submitted that since the 2nd defendant is Industrial Development Bank of India instead of asking the bank to deposit the decretal amount in this court, this court may direct the bank to give either an undertaking or a bank guarantee. Learned counsel for the respondents on the other hand submitted that such a course is not permissible in law in view of the clear provision contained in Order 41 Rule 5 of the Code of Civil Procedure. He further submitted that in fact the execution proceedings were initiated in 2004 and 3 the said fact has been stated by the respondents in their affidavit in reply to the notice of motion. It is submitted that therefore, the explanation given by the appellant for not filing the notice of motion for such a long time is totally unacceptable. 4. Since the appeal is admitted the impugned judgment and decree will have to be stayed pending appeal. It is true that the 2nd defendant is a bank. However, in view of the clear provision contained in Order 41 Rule 5 of the Code of Civil Procedure, we are inclined to direct the appellant/2nd defendant to deposit the decretal amount with interest in this court within one week from today. Order accordingly. On such payment being made, there shall be order in terms of prayer (a) of the notice of motion. Office is directed to invest the said amount in any nationalised bank on usual terms. Motion is disposed of. (K. K. TATED, J.) (SMT. RANJANA DESAI, J.)