sa478.06.sxw 1 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 478 OF 2006 Shri Abhay Mulchand Picha. ... Appellant V/s. M/s. Chandrakant Hastimal Mutha. ... Respondent. Mr. Madhav Jamdar, Advocate for Appellant. Mr. Rohit Surawase h/f. Mr. Nitin Deshpande, Advocate for Respondent. CORAM:- GIRISH GODBOLE,J. DATED :- 7TH JULY, 2011. P.C. : 1. Heard Mr. Jamdar, Advocate for the Appellant and Mr. Rohit Surawase holding for Advocate Mr. Nitin Deshpande for Respondents. Mr. Nitin Deshpande has filed leave note. Advocate Mr. Jamdar however, states that the Appellant does not wish to prosecute the Appeal further since according to the Appellant, the dispute between the Appellant and Respondent is completely settled out of the court. Advocate Mr. Jamdar therefore prays for unconditional withdrawal of the Appeal. The Appeal is accordingly allowed to be withdrawn. The Appellant will be entitled to claim refund of court fee as per rules. sa478.06.sxw 2 2. Mr. Jamdar, Advocate for the Appellant has placed on record copy of the order dated 27th February, 2008 passed in Civil Application No. 1399 of 2005 in Second Appeal No. 478 of 2006, which was a Civil Application for stay. By the said order, the execution of the decree was stayed subject to condition of deposit of entire decreetal amount. Pursuant to the said order, the Appellant had deposited sum of Rs. 40,000/- in the Court of CJSD, Pune on 25/4/2008. The copy of purshis filed by the Appellant in the District Court alongwith the copy of receipt of Rs. 40,000/- is placed on record. Mr. Jamdar states that on account of unconditional withdrawal of the Appeal, the said amount alongwith accrued interest may be returned to the Appellant. 3. The effect of unconditional withdrawal of the Second Appeal is confirmation of the Judgment and Decree dated 30th June, 2004 passed by the learned 8th Additional District Judge, Pune in Civil Appeal No. 47 of 2003. It is not known whether the Respondent has put the decree in execution but in any case because of the aforesaid order dated 27/2/2008 passed in Civil Application No. 1399 of 2005, the decree could not have been executed. Since the Appeal is being unconditionally withdrawn, sa478.06.sxw 3 appropriate orders will have to be passed in respect of the sum of Rs. 40,000/- and interest accrued thereon. In case the dispute is in fact not settled out of the court as stated by the Appellant, the Respondent wil be free to execute the decree passed in Civil Appeal No. 47 of 2003. In view of this, if no application for execution of the decree is filed and appropriate orders for attachment of the amount deposited by the Appellant in the trial Court on 25/4/2008 and interest accrued thereon are not obtained by the Respondent within 3 months from today, after expiry of 3 months said amount alongwith the accrued interest thereon shall be paid over to the Appellant. Needless to state that in case the Respondent choses to execute the decree and claim that the dispute is not settled out of the court, the Appellant will be free to file appropriate documents or application before the executing court in support of his submission that the dispute is settled out of the court. Appeal is disposed of on the above terms. [GIRISH GODBOLE, J.]