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2010 DIGILAW 2752 (MAD)

R. v. Sengodan VS R. A. Shanmugham

2010-07-07

G.RAJASURIA

body2010
Judgment :- 1. Inveighing the order dated 1.4.2010 passed by the 2nd Additional Subordinate Judge, Salem in I.A.No.9 o 2010 in A.S.No.18 of 2010, this civil revision petition is focussed. 2. Heard both. 3. Niggard and bereft of unnecessary details, the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: The respondent herein filed the suit O.S.No.768 of 1996 for recovery of possession of the suit property. The suit was decreed, after contest and as against which, A.S.No.18 of 2010 was filed by the defendants, who are the revision petitioners herein. Along with the said appeal I.A.No.9 of 2010 was filed seeking stay. But after hearing both sides the appellate Court dismissed the said application. 4. Being aggrieved by and dissatisfied with the said order of dismissal, this revision has been filed on various grounds, the pith and marrow of them would be to the effect that the appeal itself is as against the judgment and decree passed by the trial Court in ordering delivery of suit property in favour of the respondent/plaintiff; but the appellate Court, after entertaining the appeal simply dismissed the I.A. for stay and thereby impliedly permitting the respondent/plaintiff to take delivery of the residential portion, which is under the occupation of the defendant and if the decree of the trial Court is executed then the revision petitioners/defendants would be put to discomfiture in arguing the appeal itself. 5. The learned counsel for the revision petitioners/defendants reiterating the grounds of revision would pray for allowing this revision. 6. By way of torpedoing and pulverising the arguments as put forth on the side of the learned counsel for the revision petitioner/defendant, the learned counsel for the respondent/plaintiff would detail and delineate, express and expatiate various facts, which would run thus: At the earliest point of time itself, the respondent herein filed the suit for declaration of his title to the suit property as against the revision petitioners herein, which was decreed. As against the said decree no appeal was filed. Subsequently, the revision petitioners herein filed the suit for partition claiming share in the suit property, but that was dismissed. As against which, appeal was filed for nothing but to be dismissed and the second appeal was also dismissed. As against the said decree no appeal was filed. Subsequently, the revision petitioners herein filed the suit for partition claiming share in the suit property, but that was dismissed. As against which, appeal was filed for nothing but to be dismissed and the second appeal was also dismissed. In the meanwhile, one other suit was filed by the same revision petitioners herein seeking injunction so as to protect their possession in respect of the suit property and that was dismissed. As against which, appeal was filed and that was also dismissed. Thereafter O.S.No.768 of 1996 was filed by the respondent herein for recovery of possession of the suit property as against the revision petitioners herein and it was decreed, after contest. As against which, the appeal A.S.No.18 of 2010 was filed along with the said I.A.No.9 of 2010. Pending appeal, the I.A.No.9 of 2010 for stay was dismissed. As such, according to the learned counsel for the respondent/plaintiff, there is no merit at all in the revision filed by the revision petitioners/defendants. 7. The point for consideration is as to whether the trial Court was justified in not granting stay of the operation of the judgment and decree in O.S.No.768 of 1996, pending A.S.NO.18 of 2010? 8. I would like to at once agree with the general submission made by the learned counsel for the revision petitioners that when the first appeal is filed challenging and impugning the order of the trial Court in ordering delivery of possession, the appellate Court normally is expected to grant stay of the operation of the decree, as otherwise, the appellant would feel as though his cause has been pre-judged by the trial Court. 9. However, this is a singularly singular case in view of the narration as put forth before this Court by the learned counsel for the respondent. Prior to the present litigation the same parties got themselves locked up in a serious of litigations and in those litigations precisely the revision petitioners herein met with their water loo several times and that galvanised and geared them to once again star the litigative battle as against the respondent herein and in that process alone this A.S.No.18 of 2010 emerged. In this factual matrix, presumably the first appellate Court, even though not detailed and delineated the factual reasons, yet generally discussed the matter and dismissed the stay application. 10. In this factual matrix, presumably the first appellate Court, even though not detailed and delineated the factual reasons, yet generally discussed the matter and dismissed the stay application. 10. The core question arises as to whether this Court can interfere in revision. 11. I would like to observe that prima facie if the matter is viewed it is quite obvious that neither Article 227 of the Constitution of India, nor Section 115 of C.P.C is attracted. However, the learned counsel for the revision petitioners would make an extempore submission that at least a direction might be given to the appellate Court to dispose of the appeal within one month and in the meanwhile stay might be granted. 12. I could see considerable force in his submission. In view of the maxim audi alteram partem and also keeping in view the trite legal proposition that justice should not only be done but it should be seen to be done and in the interest of achieving objectivity to the fullest extent, I would like to pass the following order: The appellate Court shall dispose of the appeal A.S.No.18 of 2010 within one month from the date of receipt of copy of this order. Till then the judgment and decree passed in O.S.No.768 of 1996 shall not be executed. In the event of the appellate Court dismissing the appeal, the executing Court without waiting for any further formalities straight away order delivery of the suit property in favour of the respondent herein. The civil revision petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.