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2003 DIGILAW 262 (HP)

SUBHASH CHAND v. SHAKUNTALA DEVI

2003-09-03

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.- Heard. 2. Mr. Gupta, learned Counsel for the appellant vehemently urges that while granting stay of the execution of the decree at the request of the appellant, the appellant cannot be put to terms so as to ask him to deposit use and occupation charges. 3. The contention is two fold. 4. Firstly, for the reason that such charges were not asked for and the proper court fee has not been affixed and secondly under clause (c) of sub-rule 3 Order 41 of the Code of Civil Procedure the appellant at best can be asked to furnish the security which the appellant is willing to furnish. 5. It is true, as observed by the learned District Judge in Para 20 of the judgment that the plaintiff voluntarily relinquished his claim regarding the arrears of use and occupation charges when he filed the suit. Though had claimed future use and occupation charges. 6. The court in my view would be within its jurisdiction to put the appellant to terms under its inherent powers while granting stay of execution of decree under Order 41 Rule 5 of the Code of Civil Procedure. Mr. Gupta, learned Counsel refers to Sawanoo Ram and others v. Nathu Ram, 2002(2) Current Law Journal 343. In that case it appears that the appellant had filed a suit for possession. The plaintiff had not claimed any past or future, pendente lite mesne profit/damages for unlawful use and occupation of the suit property by the respondents. In that case, it was observed that even if the appeal of the applicant was to be dismissed the court cannot grant the relief of mesne profits, which were never claimed. In the present case, the respondent has prayed for future use and occupation charges. In the circumstances, ratio of this case is not applicable to the facts of this case. 7. So far applicability of clause (c) of sub-rule (3) Order 41 of the Code of Civil Procedure is concerned it is open to the Court, while staying the execution of the decree, to ask for security for due performance of such decree or order as may be ultimately passed. 7. So far applicability of clause (c) of sub-rule (3) Order 41 of the Code of Civil Procedure is concerned it is open to the Court, while staying the execution of the decree, to ask for security for due performance of such decree or order as may be ultimately passed. Merely because clause (c) of sub-rule (3) Order 41 of the Code of Civil Procedure provides for furnishing security, which the court may ask for due performance of such decree1, would not mean that the appellant who ask for the stay of the execution of the decree cannot be put to terms. Such power is also referable to Section 151 of the Code. 8. Taking into consideration the entirety of the circumstances, the application of the appellant is allowed. The execution of the impugned judgment and decree of the learned District Judge dated 4th September, 2002 is stayed subject to appellants depositing an amount of Rs. 200/- per month in the Registry of this Court as use and occupation charges from the date of the decree of the suit. Such amount shall be deposited after every three months till the disposal of the appeal. The arrears shall be deposited within three weeks from today. The amount so deposited by the appellant shall be invested in the fixed deposit by the Registry. The deposit shall abide by the result of this appeal. 9. The application is disposed of. R.S.A. No. 481 of 2002 10. Hearing of the appeal shall be expedited.