How to get the appeal dismissed when no payment made even after money decree.
YOGESH KUMAR
(Querist) 09 April 2014
This query is : Resolved
1. A MONEY DECREE HAS BEEN PASSED IN FAVOUR OF THE PLAINTIFF. THE DEFENDANT DOESN'T PAY ANY AMOUNT AND FILES AN APPEAL IN THE COURT OF HON'BLE ADJ. ON FIRST HEARING, HON'BLE ADJ ASKS THE APPELLANT TO DEPOSIT THE DECREE AMOUNT, I.E. PRINCIPAL + UPTODATE INTEREST IN THE TREASURY WITHIN 15 DAYS.
ON THE NEXT DATE OF HEARING, IT IS FOUND THAT THE HON'BLE ADJ IS TRANSFERRED, AND THE NEW HON'BLE ADJ TAKES OVER. THE APPELLANT DOES NOT DEPOSIT THE FULL AMOUNT AS STATED ABOVE, BUT MOVES AN APPLICATION STATING THAT HE HAD DEPOSITED ROUGHLY 50% OF THE AMOUNT ABOUT EIGHT YEARS BACK DURING THE COURSE OF LITIGATION.
MY QUERY IS AS FOLLOWS:
1. WILL THE HON'BLE ADJ DISMISS HIS APPEAL FOR NOT COMPLYING WITH ORDER 41 RULE 1(3) CPC, OR WILL HE BE ALLOWED TO PURSUE HIS APPEAL?
2. ON WHAT BASIS THE DEFENDANT CAN GET THE APPEAL DISMISSED AND GET THE DECREE EXECUTED AT THE EARLIEST?
3. EVEN AFTER STRONG OBJECTION BY THE DEFENDANT, THE NEW HON'BLE ADJ HAS NOT DISMISSED THE APPEAL, BUT SENT THE CASE TO MEDIATION CELL, BUT COULD NOT BE SETTLED THERE ALSO, AS THE APPELLANT WAS NOT READY TO PAY THE AMOUNT. INSPITE OF ALL THIS THE HON'BLE ADJ HAS ALLOWED THE APPELLANT TO FILE WRITTEN ARGUMENTS IN THE COURT.
I WOULD LIKE TO KNOW, WHETHER THE ACTION OF HON'BLE ADJ IS JUSTIFIED IN ALLOWING THE APPELLANT TO FILE WRITTEN ARGUMENTS. IN MY OPINION, THE APPEAL SHOULD HAVE BEEN DISMISSED. PLS ELABORATE THE COMPLETE PROCEDURE AND PROFORMA OF THE DOCUMENTS TO BE PREPARED FOR FILING BEFORE THE COURT TO GET THE DECREE EXECUTED, AND THE APPEAL TO BE GOT DISMISSED. THANKS IN ADVANCE.
Surrender K Singal
(Expert) 10 April 2014
Admitting Appeal is one and Staying EXECUTION of Decree is another matter for ADJ; So long as there is no STAY on execution of Decree, you should proceed with it before the Court which decreed your suit. Proforma is easily available with the stamp vendor or court stationery vendor. You should also file your objection to the Appeal for dismissal of Appeal, rather seriously.
YOGESH KUMAR
(Querist) 10 April 2014
WILL I HAVE TO FILE POINT WISE REBUTTAL AND SEND ADVANCE COPY TO THE APPELLANT BEFORE THE NEXT DATE OF HEARING.
Surrender K Singal
(Expert) 10 April 2014
Yes, undoubtedly; Be serious and do not delay; You may take a preliminary objection highlighting non-compliance of ADJ's Direction / Order for depositing Decretal Amount, as passed while admitting Appeal for consideration;
Rajendra K Goyal
(Expert) 10 April 2014
In such case proceed with the proceedings before the court, agree with the advise of expert singal ji.
T. Kalaiselvan, Advocate
(Expert) 10 April 2014
I go with the opinions expressed by expert Mr. Singal in this connection, you may follow his valuable advise.
YOGESH KUMAR
(Querist) 11 April 2014
IS IT POSSIBLE TO APPLY FOR EXECUTION OF THE DECREE IN THE ABOVE CASE IN THE CIVIL COURT, WHICH HAD DECREED IN FAVOUR OF THE PLAINTIFF, WHEN THE OPPOSITE PARTY HAS FILED AN APPEAL AGAINST THE ORDER OF THE CIVIL COURT BEFORE ADJ?
I HAVE BEEN GIVEN TO UNDERSTAND THAT PETITION SHOULD BE FILED UNDER ORDER 21, RULE 11 (2) OF THE C.P.C. FOR EXECUTION OF THE DECREE. I, HEREBY REQUEST YOU TO KINDLY PROVIDE ME A PROFORMA OF THE PETITION TO BE FILED, ALONG WITH ALL OTHER NECESSARY DOCUMENTS TO BE FILED. IF POSSIBLE, PROVIDE THE SOURCE (BOOK) OR FROM WEBSITE, FROM WHERE THE SAME CAN BE DOWNLOADED, OR SEND THE PDF FILE AT: computers.bright@gmail.com
Surrender K Singal
(Expert) 12 April 2014
Execution of Decree can be proceeded with in the original Civil Court unless there is any Stay on such execution from ADJ; Formal proforma for execution is also appended in CPC itself; You can get it from stamp vendor or stationery vendor at Court premises itself;
YOGESH KUMAR
(Querist) 06 May 2014
IS IT POSSIBLE TO GET THE CASE TRFD. TO ANOTHER COURT, IF THE HON'BLE ADJ DOES NOT DISMISS THE APPEAL, AND ALLOWS HIM TO ARGUE THE CASE INSPITE OF STRONG OBJECTION FROM MY SIDE FOR NOT SECURING THE DECREE AMOUNT? IF IT IS POSSIBLE, THEN PLS LET ME KNOW WHETHER ANY APPLICATION IN PARTICULAR FORMAT SHOULD BE MOVED FOR TRANSFERRING THE CASE OR VERBAL REQUEST BEFORE THE COURT IS SUFFICIENT? WILL IT NOT HAVE ANY ADVERSE EFFECT OR THE NEW COURT WILL BE BIASED AGAINST ME AS I HAD GOT THE CASE TRANSFERRED?
