1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1729 OF 2010 IN FIRST APPEAL NO.656 OF 2010 Shri Madhukar B. Arwade. ....Applicant. Vs. Shri Deepak D. Naik & Anr. ....Respondents Mr.V.P.Sawant i/b. V.P.Sawant & Nityoah Suneel & Asso. & Jay Mehta for applicant. Mr.S.S.Patwardhan for Respondent Nos.1 and 2. CORAM:- A.M.KHANWILKAR AND A.A.SAYED, JJ DATED:- JULY 8, 2010 P.C. 1. Heard Counsel for the parties. 2. Court below has decreed the suit filed by the Respondent and has ordered the Appellant/Defendant to pay sum of Rs. 18,39,000/- to the Plaintiff No.2 with further interest @ 6% p.a. from the date of the suit i.e. 21st August, 2007 till its realisation. Being money decree, the appellant is obliged to deposit the entire decreetal amount, only when the Court can entertain the request for interim 2 relief during the pendency of the appeal. 3. To get over this position Counsel for the Appellant submits that considering the inconsistent findings in the impugned Judgment and even if one of the finding was to be accepted as it is, decree as passed cannot be sustained. In that, the trial Court has found that the amount of Rs. 15,00,000/- was accepted by the Appellant/defendant from the Plaintiff No.1 upon execution of MOU Exh. 30. Transaction was effected by the Plaintiff No.1 in his personal capacity whereas the decree as passed directs the Appellant/defendant to pay the amount to Plaintiff No.2 with whom the Appellant had no lis. The argument though attractive does not impress us to excuse the Appellant from depositing decreetal amount in this Court. The fact remains that that the Appellant has admittedly received sum of Rs. 15,00,000/- from the Plaintiff No.1. The Appellant has not chosen to file substantive proceeding for specific performance of the said MOU. As aforesaid, the decree passed against the Appellant is a money decree. The correctness of the conclusion reached by the trial Court has been put in issue in the present appeal, which will be decided appropriately. The Appellant is obliged to deposit the decreetal amount to avail of the interim relief during the pendency of the appeal. 3 4. To get over this position, the Counsel for the Appellant would then contend that this Court has discretion to reduce the amount and permit the Appellant to deposit only part of the decreetal amount. Our attention is invited to Bombay Amendment in Order 41. Even so, the argument canvassed before us does not commend us to exercise the discretion as it is not possible to record sufficient reasons to exercise such discretion in the fact situation of the present case. In the circumstances, Application is disposed of on the following terms. (i) The Appellant shall deposit the entire decreetal amount in this court within four weeks from today, failing which the Office to treat the Application as dismissed for non-prosecution without further reference to the Court. As a consequence, the interim protection granted to the Appellant would stand vacated forthwith. (ii) Initially, interim relief in terms of prayer clause (a) of the Application shall operate for a period of six weeks from today. In the event, the entire decreetal amount is deposited in this court within specified time, the same interim arrangement would continue till the disposal of the appeal. (iii) The amount so deposited be invested by the Registry in the 4 appropriate Fixed Deposit Scheme. It will be open to the Respondent to apply for withdrawal of the amount which application will be considered on its own merits. (iv) Application is disposed of accordingly. 5. Counsel for the Appellant submits that the Appellant is a senior citizen for which the hearing of the Appeal be expedited. It will be open to Appellant to move the move formal Application for this purpose, which will be considered on its own merits. (A.A.SAYED, J) (A.M.KHANWILKAR, J)