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2001 DIGILAW 869 (PAT)

Sachida Nand Pandey v. Madhusudan Pandey

2001-09-13

RADHA MOHAN PRASAD

body2001
ORDER It is submitted on behalf of the appellants that the prayer made in the appeal is only confined as against the order dated 11.3.1999 passed in Title Suit No. 123 of 1997 by the learned Subordinate Judge, Gopalganj to the extent whereby learned Subordinate Judge has directed for maintaining status quo with respect to the deposit of the amount in Gopalganj Kshetriya Gramin Bank, Branch Durampara of the deceased Dewashwar Pandey. 2. In short the relevant facts are that the defendant-appellant no.1 is nominee of the deceased with respect to the above-mentioned amount deposited in the Bank. Plaintiff-Respondent 1st set filed suit for partition bearing Title Suit No. 123 of 1997. In the said, suit they filed a petition under Order IX Rule 1 of C.P.C. which has been disposed of by the impugned order restraining both the parties by the order of status quo from making any change with regard to moveable and immovable properties till final decision of the case which obviously also included the amount in deposit of the Bank referred to above. 3. Heard learned counsel for the parties including the Bank. 4. From the impugned order it appears that the case of the Bank, on whose behalf show cause was filed against the injunction petition, is that defendant no. 1 has already been given as nominee by the Account-holder and the law favour to him. However Mr. Dwivedi, learned senior counsel appearing of the Respondent 1st set has submitted that from the order itself. It is clear that nomination paper was not brought on record and thus, it is difficult to accept that the nomination was made in the prescribed manner. He, further, submitted that in view of the law settled by the Apex Court in the case of Sarbati Devi Vs. Usha Devi reported in A.I.R. 1984 Supreme Court 346, the nominee does not have absolute right to claim for payment of the amount in case where other co-shares are seeking for partition. 5. This Court does not find force in the said submission of the learned counsel for the Respondents. The case before the Apex Court was dealing with the question of consideration of Section 39 of the Insurance Act, and no provision has been brought to the notice of this Court relating to deposit in the Bank, which is in paramateria. 5. This Court does not find force in the said submission of the learned counsel for the Respondents. The case before the Apex Court was dealing with the question of consideration of Section 39 of the Insurance Act, and no provision has been brought to the notice of this Court relating to deposit in the Bank, which is in paramateria. However, the said question is to be determined in the suit itself on leading of evidence by the parties. Under such circumstances, this Court does not consider it proper to go into any further details regarding merit of the contention advanced by the learned counsel for the parties on the above question. 6. However, having regard to the ,fact that the bank has admitted that defendant no. 1 is nominee and the law favours him to receive this amount, this Court does not find any reason to allow the impugned order of status quo passed by the learned Subordinate Judge with respect to it to contnue. 7. Thus, the impugned order to the above extent is set aside. However, for withdrawal of the abovementioned amount the appellant no. 1 shal furnish adequate security with respect to the share claimed in the said amount by the plaintiff to the satisfaction of the court below which will be abide by the final result in the Title Suit. It is made clear that this Court has not interfered with the rest part of the order.