Decided on June 07,2005



Motilal B.Naik, - (1.) THIS is an application filed under Section 21 of the Act praying this Court to waive the pre-condition of deposit of 75% of the decreetal amount for entertaining the appeal filed against the final order passed by the DRT-I.
(2.) According to the learned Counsel for the appellant, the OA has been decreed on untenable grounds pursuant to which the decree holder respondent herein has moved the Recovery" Officer for further action. It is also stated though a detailed written statement (WS) along with evidence was placed before the Presiding Officer, DRT-I, the Presiding Officer without considering the evidence adduced on behalf of the appellant ordered the OA on untenable grounds. It is urged by the learned Counsel that under the scheme of the Act, when an appeal is to be filed against the decree of the original proceedings, 75% of the decretal amount is to be deposited before the appeal is entertained by the appellate authority. The Counsel says as the applicant has no means to pay the amount, the pre-condition of depositing 75% of the decretal amount be waived and the appeal may be directed to be listed for hearing at an appropriate time. It is also prayed till the appeal is disposed of, the Recovery Officer be restrained from proceeding to take action on the basis of the recovery certificate. Mr. Sanjay Bhatt, learned Counsel for the respondent on the contrary submits that the Presiding Officer has recorded a finding which is to the effect that no defence whatsoever was adduced on behalf of the appellant who is defendant No. 2 before the DRT and, thus, the Court on the basis of the material available granted relief to the respondent. It is also submitted though the appellant is trying to make a hue and cry against the action initiated by the Recovery Officer, the property put to auction by the Recovery Officer belongs to the defendant No. 1 and not to this appellant. It is further pleaded that the defendant No. 1 has not filed any appeal against the judgment rendered by the Presiding Officer of DRT-I and, therefore, the version projected before this Court by the appellant is far from reality. The learned Counsel while making these submissions, drew the attention of the Court to para 11 of the impugned judgment which directed the sums to be recovered in a particular manner and as such, the respondent is seeking implementation of the judgment as per the directions issued by the Presiding Officer, DRT-I. It is also brought to my notice that though proceedings ,are initiated way back in August, 2003 and pending before the Recovery Officer, the appellant has not made his presence and participated in the proceedings. Belated attempt, is now made precisely two days back whereby the appellant has made his appearance with a fond hope that he could convince the Recovery Officer. The learned Counsel for respondent stated the tactics adopted by this appellant are such, no indulgence whatsoever could be shown by this Court and pleaded as long as the appellant fails to comply with the provision under Section 21, the Court cannot aid the appellant.
(3.) THE appellant has filed the application under Section 21 of the Act. In support of the application, an affidavit is filed by the appellant wherein he avered the grounds raised in the appeal could be treated as part of the appeal ground. Except saying this, nothing is stated before this Court to show that the appellant is not capable of complying with the preconditions contemplated under Section 21 of the Act.;

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