Tarlok Sundari v. Pelican Hosiery Industries, Ludhiana
2000-03-03
BAKHSHISH KAUR
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DigiLaw.ai
JUDGMENT Bakhshish Kaur, J. - This is a revision petition challenging the impugned order dated March 1, 1983 whereby the application under Sections 47, 145 and 151 of Code of Civil Procedure, filed by the petitioner was dismissed. 2. The facts culminating into the petition briefly stated are that Smt. Tarlok Sundari petitioner filed a suit for possession by redemption of mortgage on December 22, 1975. The suit was decreed on December 29, 1978. Aggrieved by that judgment and decree two separate appeals were filed which were also dismissed on December 18, 1979 by the first Appellate Court. During the pendency of the appeal execution of the decree was stayed by that Court and the relevant order staying the execution proceedings passed by the Court and reproduced in the petition in hand reads as under : "Arguments on the application heard. In view of the findings of the trial Court, the appellant is not a tenant and he is in possession of the disputed property since 25.9.1975. The stay order issued in favour of the appellant is confirmed subject if the appellant furnishes bank security to the extent of Rs. 15,000/- within a weeks time to the satisfaction of the trial Court for the due performance of final decree or order which shall be binding on the appellant regarding mesne profits." 3. It is pleaded inter alia that on account of some clerical error the decree was amended and the Appellate Court stayed the dispossession and directed respondent No. 3 to furnish security for mesne profits in the sum of Rs. 5,000/- and respondent No. 6 gave the required security bond. The appeal was dismissed on August 29, 1981. Since respondent No. 3 remained in wrongful possession for a long period and the petitioner was entitled to recovery of the amount of Rs. 15,000/- plus Rs. 5,000/- from respondents No. 4 to 6 as mesne profits, therefore, she filed an application under Sections 47, 145 and 151 CPC which has been dismissed by the learned Sub Judge vide impugned order dated 1.3.1983. 4. I have heard Mr. G.S. Punia, learned Counsel for the petitioner. None had appeared on behalf of the respondent. 5. Mr. Punia, learned Counsel for the petitioner contended that the application for recovery of the amount under Sections 47, 145 and 151 CPC is maintainable.
4. I have heard Mr. G.S. Punia, learned Counsel for the petitioner. None had appeared on behalf of the respondent. 5. Mr. Punia, learned Counsel for the petitioner contended that the application for recovery of the amount under Sections 47, 145 and 151 CPC is maintainable. No such decree is required to be passed for the recovery of the amount for mesne profit when the respondent had given an undertaking and furnished the security bond. It is for a specific amount of Rs. 15,000/- plus Rs. 5,000/- for mesne profit, therefore, they are bound to pay the amount in terms of security furnished by them. 6. The relevant portion of the provision contained in clause (c) of Section 145, Code of Civil Procedure is to the effect that : "When any person has become liable as surety for the fulfilment of any condition imposed on any person under an order of the Court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him to the extent to which he rendered himself personally liable in the manner herein provided for execution of decree." 7. Respondents by executing security bond had rendered themselves liable to the extent of Rs. 15,000/- plus Rs. 5,000/- in the event of failure of the appeal. Appellate Court while staying the dispossession had observed that the appellant was not a tenant and he is in possession of the disputed property since 25.9.1975. The stay order, therefore, issued in favour of the appellant was confirmed subject to the appellant furnishing bank security to the extent of Rs. 15,000/- within a stipulated period to the satisfaction of the trial Court, for the due performance of the final decree. Respondent No. 3 was allowed extension of time and respondent No. 5 furnished bank guarantee for respondent No. 3. The respondent No. 3 filed another appeal against the amended decree and the Appellate Court stayed his dispossession and directed respondent No. 3 to furnish security for mesne profits in the sum of Rs. 5,000/- and respondent No. 6 gave the required security bond. In this manner the dispossession of the appellants-respondents was stayed during the pendency of the appeal against the decree recorded in the suit because they had furnished security bond demanded vide said order.
5,000/- and respondent No. 6 gave the required security bond. In this manner the dispossession of the appellants-respondents was stayed during the pendency of the appeal against the decree recorded in the suit because they had furnished security bond demanded vide said order. It was on account of the furnishing of the said security bond, appellant remained in possession during the pendency of the appeal. He had enjoyed the usufruct during the pendency of the appeal and it is not now open to contend that the executing Court had no jurisdiction to entertain the application or to enforce the terms of the security bond which he had undertaken to fulfil. Thus security bond is bound to be executed summarily in execution proceeding without having recourse to a fresh suit, as has been held in Naurang Singh v. Teja Singh and others, 1976 PLR 96. In Baldev Parshad v. Kishan Chand and another, 1990(2) PLR 641 : 1990 PLJ 519, also it has been held that the amount of mesne profit during the period the stay order remained in operation could be recovered in execution proceedings without having recourse to a fresh suit, on an application under Section 145 of the Code of Civil Procedure filed before the executing Court. My attention was also drawn to Tej Ram v. Amar Singh, 1986(2) PLR 359. 8. The dispossession was stayed during the pendency of the appeal and he had undertaken to pay the amount in case he remains unsuccessful in appeal and was bound to honour the same as it was he who had enjoyed the usufruct of the property during the pendency of the appeal. Now the plea is not maintainable that the amount of mesne profit is to be recovered by way of filing a suit. Assuming that the petitioner could not claim Rs. 20,000/- being the total amount of two surety bonds, it was obligatory for the executing Court to determine the amount of compensation/mesne profit payable to the petitioner and then issue a direction to the respondent-judgment-debtor/surety to pay the same as has been held in Kunwar Rohani Ramandhey Prasad Singh v. Thakur Har Prasad Singh and others, AIR 1943 P.C. 189. 9. Consequently, this civil revision is accepted.
9. Consequently, this civil revision is accepted. The case is remitted to the executing Court which would proceed with the execution proceedings and at the same time the amount of compensation/mesne profit payable to the petitioner and take necessary steps to recover the amount after issuing notice to the judgment-debtor-respondent. The parties are directed to appear before the executing court i.e. the successor Court of Mr. J.S. Chawla, the then Sub Judge at Ludhiana, on 10.3.2000. Petition allowed.