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2001 DIGILAW 373 (HP)

SAWANOO RAM v. NATHU RAM

2001-12-07

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J. :- The present application under Order 41 Rule 5 (3) read with Section 151 of the Code of Civil Procedure (hereafter referred to as the Code) has been preferred by the applicant/respondent/plaintiff (hereafter referred to as the applicant) averring therein that RSA No.432 of 1999 has been admitted for hearing by this Court and is to come up for final hearing. This Court has stayed the execution of the decree impugned in the appeal and the appeal is likely to take some time for its disposal, therefore, the applicant has prayed that means profits may be assessed and the respondents/appellants/defendants (hereafter referred to as the respondents) be directed to pay the means profits for the use and occupation of the suit land, a decree for possession whereof has been passed in his favour or in the alternative the appeal may be ordered to be listed for final hearing at an early date. 2. The application has been contested by the respondents on the grounds that it is not maintainable and means profits cannot be assessed by the Court in exercise of the inherent powers and in the absence of any material on record. 3. I had heard the learned counsel for the applicant and he learned counsel for the respondents and have also gone through the relevant records. 4. To properly appreciate the controversy on hand it is expedient to refer to the material facts leading to the filing of the present application. The applicant instituted Civil Suit No.240/1 of 1994 for possession of the suit land which is a plot measuring 59 x 40 situated in Abadi Deh of Village Bhatian. Pargana Plassi. Tehsil Nalagarh. District Solan. H.P.. on the ground that he had been in possession of the suit land for a period of more than 40 years till 1.8.1987 when he was forcibly dispossessed by the respondents whereas he had acquired title over the suit land by way of adverse possession. 5. The respondents contested the suit on various preliminary objections as also on merits averring that the suit property was owned and possessed by one Dev Raj who bequeathed it in favour of respondent No.I. After the death of said Dev Raj. respondent No.lsucceeded to the suit land and entered upon possession thereof. On 30.7.1987. respondent No. 1 mortgaged the suit property. respondent No.lsucceeded to the suit land and entered upon possession thereof. On 30.7.1987. respondent No. 1 mortgaged the suit property. Along with other property, with respondent Nos.2 to 4 for consideration. It is. therefore, claimed that the applicant has no right, title or interest in the suit land. The trial Court decreed the suit. Feeling aggrieved, the respondents preferred an appeal which was dismissed by the learned Additional District Judge. Solan. Being aggrieved, the respondents have preferred a second appeal in this Court which has been admitted and is pending disposal. After admission of the appeal, the applicant preferred an application (being CMP No.501 of 2001) under Order 41 Rule 5 read with Section 151 of the Code praying for staying execution and operation of the impugned judgment and decree, which came up for orders on 9.7.2001. After hearing the parties, the Court vide order dated 9.7.2001. stayed the execution of the impugned decree till the disposal of the appeal subject to the respondents furnishing security in the sum of Rs.20.000/- for due performance of the decree which may be ultimate binding upon them. It was after the passing of the aforesaid order that the present application has been moved. 6. It was contended by the learned counsel for the applicant that execution of the impugned decree has been stayed though two Courts below have concurrently held him entitled for possession of the suit land. The appeal is not likely to be disposed of at an early date, therefore, the means profits for use and occupation of the suit land by the respondents may be assessed and they be directed to pay so assessed means profits to the applicant who is being deprived of the benefit of the decree for possession against the respondents. It was further argued that the present application is maintainable in view of the provisions and Rule 5 of Order 41 of the Code which enable this Court to pass appropriate orders to compensate the applicant for the loss he is sustaining because of the stay of the execution of the decree. 7. It was further argued that the present application is maintainable in view of the provisions and Rule 5 of Order 41 of the Code which enable this Court to pass appropriate orders to compensate the applicant for the loss he is sustaining because of the stay of the execution of the decree. 7. On the other hand, the learned counsel for the respondents had contended that the suit of the applicant was for possession simplicitor and he had not claimed any means profits nor he had taken recourse to the relevant provisions of law before the trial Court to get the means profits assessed which cannot be done within the framework of Rule 5 of Order 41 of the Code. It was further contended that this Court has already imposed reasonable condition while staying the execution of the decree as was permissible under the law and the present application, therefore, is not competent and maintainable. 8. Rule 5 of Order 41 of the Code reads as follows: "5. Stay by Appellate Court.- (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be staved by reason only of an appeal having been preferred from the decree: but the Appellate Court may for sufficient cause order stay of execution of such decree. Explanation - An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but a affidavit sworn by the appellant, based on his personal know ledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order of the stay of execution or any order to the contrary, be acted upon by the Court of first instance. (2) Stay by Court which passed the decree - Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing there from, the Court which passed the decree may on sufficient cause being shown order the execution to be staved. (2) Stay by Court which passed the decree - Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing there from, the Court which passed the decree may on sufficient cause being shown order the execution to be staved. (3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied - (a) that substantial loss may result to the party applying for stay of execution unless the order is made: (b) that the application has bee made without unreasonable delay: and (c) that security has been.given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (4) Subject to provisions of sub-rule (3). the Court may make an ex pane order for stay of execution pending the hearing of the application. (5) Not withstanding anything contained in the foregoing sub- rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (c) of Rule 1. the Court shall not make an order staying the execution of the decree." 9. It is clear from a bare reading of the aforesaid provisions that mere filing of an appeal against a decree shall not operate as a stay of execution thereof. However, the appellate court before which an executable decree has been assailed, may. for sufficient cause, order stay of the execution of such a decree. Further, the conditions as specified in clauses (a), (b) and (c) of sub- Rule (3) of Rule 5. which is mandatory in character, must be fulfilled before the appellate Court may stay the execution of the impugned decree. It is also clear from sub-clause (c) supra that the appellate Court while staying execution of the decree, can ask for security for the due performance of the decree which may ultimately be binding on him. It is. thus, clear that the Court cannot ask a part}" seeking stay of the execution of a decree to furnish security or deposit/pay any amount to satisfy any thing which may be beyond the scope of the impugned decree which evidently cannot be enlarged in an appeal against such decree. 10. In the present case, the suit of the applicant was for possession of the suit land only. 10. In the present case, the suit of the applicant was for possession of the suit land only. He had not claimed any past, pendente lite or future means profits/damages for alleged unlawful use and occupation of the suit property by the respondents. Therefore, even if the appeal of the applicant is dismissed, this Court cannot grant the relief of means profits, which was never claimed in the suit or as per provisions of Rule 12 of Order 20 of the Code. This Court can. while staying the execution of the impugned decree, ask the respondents only to furnish security for due performance of the decree which may be ultimately binding on them which, in the given circumstances of the case, can be nothing else except maintaining the decree for possession of the suit land in his favour. The respondents have already been directed to furnish such security while staying the execution of the impugned decree. 11. In view of the above discussion, the prayer for assessment of means profits and directing payment thereof to the applicant is not maintainable. 12. The applicant has in the alternative prayed for early hearing of the appeal. Since similar matters are pending disposal in this Court for a period more than the period of pendency of the appeal under reference. Therefore, it cannot be ordered to be listed for early hearing out of turn. 13. As a result this application is dismissed. -