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 APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE FIRST APPEAL NO. 1916 OF 2007 VINAYAK DATTATRAYA KHAIRE & ORS. .. APPELLANTS Vs. M/s. KALYAN PROVISION STORES .. RESPONDENT Mr. U. B. Nighot for the appellants Mr. Sachin Kadam h/f S.S. Kotwal & S. S. Gite for respondent CORAM:SMT.RANJANA DESAI & SMT. R.P. SONDURBALDOTA, JJ. DATE: 25/6/08 P.C. . This first appeal is filed by the original defendants challenging the judgment and decree dated 17/6/05 passed by the Civil Judge, Senior Division, Nasik in Special Civil Suit No. 227 of 2003 filed by the respondent original plaintiff. By the impugned order the suit was decreed. The appellants were directed to pay to the respondents Rs.15,98,000/- with interest @ 24% per annum from the date of suit till realization. 2. Admittedly the impugned order is ex parte. 2 Learned Judge has observed that "defendants 1 to 3 appeared but failed to file their written statement". He has further observed that they did not appear at the time of recording evidence. 3. On 10/7/07 the appeal was admitted. The appellants were directed to deposit the decretal amount with costs within a period of six months from the date of the order. This court further directed that in case the appellants deposit the decretal amount with costs, the respondents would be entitled to withdraw the same on furnishing security to the satisfaction of the trial court. 4. The appellants took out Civil Application No. 2357 of 2008 praying that the suit may be remanded to the trial court for fresh hearing on merits within stipulated period by setting aside the impugned ex parte judgment and decree on condition that the appellants deposit the principal amount of Rs.9,44,075/- in the trial court. On 5/5/08, learned counsel for the respondents took time to obtain instructions. Hence on the civil application, we passed the following order: . "Learned counsel for the appellant 3 states that the appellant will deposit the principal amount of Rs.9,44,075/- in Trial Court. He states that since the impugned order is ex parte, it may be set aside and the Trial Court may be directed to hear the suit afresh after giving opportunity of hearing to both sides. Counsel for the respondents states that he wants to take instructions. We adjourn the matter to 16th June, 2008. . In the mean time, the appellant shall deposit a sum of Rs.9,44,075/- in the Trial Court. We are aware that by earlier order dated 10th July, 2007 the respondent was permitted to withdraw the said amount on furnishing security to the satisfaction of the Trial Court. However, in view of the suggestion made by the learned counsel for the appellant that the Trial Court be given direction to dispose of the suit after giving opportunity of hearing to both sides, till the next date of hearing, we direct that the amount so deposited, shall not be withdrawn. This order is without prejudice to the rights and contentions 4 of the respondent. Adjourned to 16th June, 2008k. The amount be deposited in the Trial Court within four weeks from today." 5. We are informed that thereafter the amount has been deposited as directed by us on 5/5/08, we have heard learned counsel for the parties. 6. It appears from the civil application that earlier the parties wanted a workable order from this court. However, that did not happen because of some differences between them. Considering this fact and the fact that the impugned order is an ex parte, in our opinion, following order will meet the ends of justice and the appeal can be disposed of in terms thereof. a). Impugned judgment and order dated 17/6/05 is quashed and set aside. Special Civil Suit No. 227 of 2003 is remanded for fresh trial in accordance with law to the trial court. The trial court shall permit the appellants to file their written statement within stipulated time and then proceed with the suit in accordance with law. 5 b). Out of the amount of Rs.9,44,075/- deposited in the trial court by the appellants, the respondents shall withdraw an amount of Rs. 5 lakhs after giving bank guarantee to the satisfaction of the trial court. c). The trial court is directed to invest the rest of the amount in any nationalised bank on usual terms. Needless to say that the amount so withdrawn and amount so invested shall be subject to final order of the trial court in Special Civil Suit No. 227 of 2003. d). The above order is subject to the appellants paying to the respondents costs quantified at Rs.8,000/-. Payment of costs is condition precedent for this order to come into force. Costs may be paid within one month from today. Needless to say that, if costs are not paid as directed, the impugned judgment and decree dated 17/6/05 shall stand revived. e). Appeal stands disposed of in the aforestated terms. f). Needless to say that in view of the disposal of the appeal, civil application also stands 6 disposed of. g). Office to provide authenticated copy. JUDGE JUDGE