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2010 DIGILAW 4507 (MAD)

R. Durai v. V. Manoharan

2010-10-05

M.VENUGOPAL

body2010
Judgment : M. VENUGOPAL, J. 1. The Petitioner/Appellant/Defendant has projected this Appeal A.S.No.607 of 2010 before this Court as against the Judgment and Decree dated 05.08.2009 in O.S.No.887 of 2004 passed by the Learned Additional District and Sessions Judge, Fast Track Court No.III, Coimbatore. 2. It is not in dispute that the Respondent/Plaintiff has succeeded before the trial Court and from the perusal of the Judgment passed by the trial Court in O.S.No.887 of 2004 it transpires that the trial Court has come to a resultant conclusion that Ex.A.1 Sale Agreement dated 14.04.2002 is true, genuine and valid document entered into between the Respondent/Plaintiff and the Appellant/Defendant and further, it has opined that the Appellant/Defendant has committed a breach of contract of sale and consequently, it granted the relief of specific performance in favour of the Respondent/Defendant. 3. The Learned Counsel for the Appellant/Defendant urges before this Court that the Respondent/Plaintiff on the strength of Decree obtained by the Respondent/Plaintiff in the main suit in O.S.No.887 of 2004, the Respondent/Plaintiff is proceeding with the Execution Petition No.8 of 2010 on the file of Executing Court and the matter is slated for hearing on 12.10.2010 for filing of the counter and if the Respondent/Plaintiff is to proceed with the execution, then, the pendency of the Appeal filed by the Appellant /Defendant will be an otiose one and therefore, it will be quite in the fitness of things that this Court may grant an Order of Stay in favour of the Appellant/Defendant. 4. Per contra, it is the contention of the Learned Senior Counsel appearing for the Respondent/Plaintiff that the trial Court has taken note of all relevant and attendant facts and circumstances of the case in conspectus fashion and further, the trial Court has scrutinised the available oral and documentary evidence on record and appreciated the same in proper way and has come to the resultant conclusion that the Respondent/Plaintiff is entitled to get the relief of specific performance and accordingly, granted the Decree and as such, the Respondent/Plaintiff is well within his right to project the execution proceedings, so as to enjoy the fruits of the Decree. 5. This Court has heard the Learned Counsel appearing for the parties and noticed their contentions. 6. 5. This Court has heard the Learned Counsel appearing for the parties and noticed their contentions. 6. It is to be noted that an elaborate counter has been filed by the Respondent/Plaintiff in M.P.No.1 of 2010 in A.S.No.607 of 2010 and suffice it for this Court to state that the contents of the counter deals with the merits of the main Appeal viz., A.S.No.607 of 2010 which can be gone into in detail at the time of final hearing of the Appeal. 7. It is to be borne in mind that an Appeal is a continuation of original proceedings viz., that of the trial Court original suit proceedings as per Section 107 of the Code of Civil Procedure. 8. As far as the present case is concerned, since the Petitioner/Appellant/Defendant has projected the present Appeal in A.S.No.607 of 2010 before this Court as against the Judgment and Decree dated 05.08.2009 passed by the trial Court in O.S.No.887 of 2004 and since the matter is pending, this Court in law has discretionary power to grant Interim Order of Stay, if the Petitioner/ Appellant/Defendant makes out a case. 9. Considering the facts and circumstances of the case, this Court points out that the power of this Court to grant stay naturally flows from the Appellate jurisdiction conferred on it as per relevant provisions of Civil Procedure Code. If the stay is not granted, then, it will result in a serious consequences creating further complications between the parties and all the more when E.P.No.8 of 2010 has been filed by the Respondent/Plaintiff before the Executing Court, which is scheduled for hearing on 12.10.2010 for filing of the counter. 10. Be that as it may, on a careful consideration of respective contentions and this court, on taking note of the other assessment of the facts and circumstances of the case in an integral fashion, comes to an inescapable conclusion that Appeal is a continuation of proceedings in law and further, this Court, on the basis of Equity, Fair Play, Prima facie and even on balance of convenience, grants the relief of interim stay (in favour of the Petitioner/Appellant/ Defendant) of the trial Courts Judgment and Decree dated 05.08.2009 in O.S.No.887 of 2010 for a period of six weeks. 11. Registry is directed to call for the entire records (material and immaterial) from the trial Court. Post after six weeks.