Judgment:
ORDER
Amitava Lala, J.
1. Since the appeal is heard on the question of law, we have not called for the record and the appeal is proceeded on the informal papers by the consent of the parties.
2. This appeal is arising out of an interim injunction order dated 18th November, 2002 in favour of the respondents against the demand notice issued under the provisions of U. P. Public Money (Recovery of Dues) Act at the instance the appellant Bank. At the time of the passing of the order, the Court has considered about the payment of substantial amounts. In any event it appears from the record that the Bank appeared in the proceedings but possibly on the fateful day due to non-availability of notice the representative of the Bank did not appear when an ex parte order of injunction was passed by the court below.
3. The appellant Bank filed an application therein under Order XXXIX, Rule 4, C.P.C. for the purposed of discharge, variation or setting aside such order which is passed ex parte and during the pendency of such application he has filed and proceeded with this appeal.
4. Learned Counsel appearing for the respondents contended before this Court that the appellant Bank cannot avail both opportunities. Learned Counsel appearing for the appellant Bank contended that there is no bar to prefer the appeal in view of a Full Bench decision of this Court rendered in Zila Parishad, Budaun and Ors. v. Brahma Rishi Sharma AIR 1979 All 376.
5. From perusal of the aforesaid decision it is crystal clear that the bank can avail opportunity of appeal either being unsuccessful to get the ex parte injunction order, discharged, varied or set aside in terms of Order XXXIX, Rule 4, C.P.C. or straightway.
6. In the instant case when the appellant Bank's application is pending, the appeal has been filed. Learned Counsel for the appellant contended that since several adjournments are granted by the court below, the application would not be heard at the earliest. We are afraid that such submission cannot be a ground of appeal. We can only express our desire that the application which is pending before the court below will be heard as expeditiously as possible.
7. Therefore, taking into totality of the matter we are of the view that the appeal cannot be sustained at this stage when the application is already pending. It may lie only when it is decided and the appellant remains unsuccessful. Therefore, the appeal stands dismissed. Interim order if any stands vacated. No order is passed as to costs.
V.C. Misra, J.
8. I agree.