Dismissed

Ulhas Namdeo Kodre v. Shivaji Genba Kodre and Ors.

Bombay HC11 Jul 2007WP/4087/2006

Case brief

AI extract

What is this about?

In a writ petition contesting an order withdrawing a security deposit, the single judge allowed the petitioner time to approach the trial court for reliefs while staying the enforcement of the subordinate appellate court order.

What did the court decide?

Stay of order withdrawing deposit for four months; liberty to approach Trial Court within two weeks; Trial Court to dispose within three months.

Ulhas Namdeo Kodre Vs Shivaji Genba Kodre and Ors. — Partition | Bombay HC (2007)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO.4087 OF 2006

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 Ulhas Namdeo Kodre .. Petitioner.

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 V/s.

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 Shivaji Genba Kodre & Others .. Respondents

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 Mr.P.S. Dani for the Petitioner.

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 Mr.A.B. Avhad for respondent No.1.

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CORAM : J.P. DEVADHAR, J.

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DATED : 11TH JULY, 2007.
P.C. :

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 1. The petitioner had filed Regular Civil Suit
 No.357 of 1996 in the Court of learned Civil Judge,
 Junior Division, Pune for partition and separate
 possession of the ancestral properties. The said
 suit was decreed by holding that the petitioner had
 1/16th share in the ancestral property.

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 2. On appeal filed by the respondent No.1, the
 Appellate Court initially stayed the decree subject
 to the respondent No.4 depositing a sum of
 Rs.2,00,000/-. Accordingly, respondent No.1
 deposited a sum of Rs.2,00,000/- in the Court of
 learned Additional District Judge, Pune. Lateron,
 the appeal was allowed and the matter was remanded
 back for fresh determination of the share of the

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 petitioner in the ancestral property.

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 3. Thereafter, the respondent No.1 filed an
 application in the disposed off appeal for withdrawal
 of the amount of Rs.2,00,000/-. By the impugned
 order dated 27th April, 2006, the Appellate Court
 allowed the application. Challenging the said order,
 present Writ Petition is filed.

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 4. The main argument of the petitioner is that
 eventhough the decree passed by the Trial Court has
 been set aside by the Appellate Court, the findings
 recorded by the Trial Court to the effect that the
 petitioner is a joint owner of the ancestral property
 is not disturbed by the Appellate Court. It is only
 the percentage of share of the petitioner which is
 required to be redetermined by the Trial Court.
 According to the petitioner, respondent No.1 has
 disposed of some of the joint family properties in
 the year 1993 and also in the year 2003. The
 petitioner seeks to make an application before the
 Trial Court for deposit of the sale proceeds realised
 by the respondent No.1 from sale of the ancestral
 property or in the alternative for retaining the
 amount of Rs.2,00,000/- deposited by the respondent
 No.1 before the lower Appellate Court.

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 5. The learned advocate for the respondent No.1
 opposes the claim of the petitioner. He submits that
 once the decree is set aside, the amount deposited in
 the Appellate Court is liable to be refunded.

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 6. On careful consideration of the rival
 submissions, in my opinion, it would be just and
 proper to permit the petitioner to approach the Trial
 Court by way of fresh application and seek
 appropriate orders.

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 7. Accordingly, the Writ Petition is disposed of
 by passing the following order :

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 i. The order passed by the Lower

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 Appellate Court shall not be enforced for a
 period of four months from today to enable
 the petitioner to obtain appropriate orders

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 from the Trial Court.

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 ii. Petitioner is at liberty to move an
 application before the Trial Court within a
 period of two weeks from today seeking
 appropriate reliefs regarding deposit of sale
 proceeds by the respondent No.1 or in the

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 alternative to retain the amount of
 Rs.2,00,000/- lying deposited in the lower

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 Appellate Court.

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 iii. If the petitioner fails to move
 application within a period of two weeks from
 today, the respondent No.1 is at liberty to
 enforce the order passed by the Appellate
 Court.

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 iv. If the petitioner files an
 application, as stated hereinabove, the Trial
 Court is directed to dispose of the
 application of the Petitioner within a period
 of three months from the date of the
 application.

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 v. Till then, the amount of
 Rs.2,00,000/- deposited in the Appellate
 Court with accrued interest be invested in
 any nationalised bank initially for a period
 of three months.

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 vi. Contentions of both the parties are
 kept open.

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 6. The writ petition is disposed of in terms of
 this order with no order as to costs.

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 (J.P. DEVADHAR, J.)

Ulhas Namdeo Kodre v. Shivaji Genba Kodre and Ors.

Case brief

What is this about?

What did the court decide?

Ulhas Namdeo Kodre v. Shivaji Genba Kodre and Ors.

Case brief

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What the court decided

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