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2010 DIGILAW 4996 (MAD)

First v. Second

2010-11-11

M.VENUGOPAL

body2010
Judgment : M. VENUGOPAL.J, The Petitioners/Appellants/D1, D3 have preferred this Civil Miscellaneous Petition under Section 151 of the Code of Civil Procedure praying for issuance of an order by this Court to grant Stay of the operation of the Judgment and Decree dated 30.01.2009 in O.S.No.5805 of 2007 passed by the Learned Additional District Judge, (Fast Track Court No.V), Chennai. 2. According to the Learned Counsel for the Petitioners/ Appellants/D1,D3, the Petitioners/Appellants have preferred A.S.No.907 of 2009 before this Court as against the Judgment and Decree dated 30.01.2009 passed by the trial Court in O.S.No.5805 of 2007 and that the First Respondent/Plaintiff filed O.S.No.5805 of 2007 against the Petitioners/Appellants and the Second Respondent/ Second Defendant praying for the relief of (a)declaring the First Respondent/Plaintiffs right of life estate in the Plaint schedule property and directing the appellants/D1,D3 to deliver vacant possession of the suit property (b)directing them to render proper accounts of the rental collection made by the First Appellant/First Defendant from the Tenant for the portion of Plaint schedule property and to pay to him such amount as may be found due on account taking (c)restraining the Appellants/D1, D3 by means of a Decree of permanent injunction from collecting any rent from the second Respondent/Second Defendant and also (d)to restrain the second Respondent/Second Defendant by means of a permanent injunction from paying any rent for the portion under his tenancy to the Appellants/D1, D3 and that the trial Court after contest and on an appreciation of oral and documentary evidence available on record has passed the Judgment interalia holding that the First Respondent/Plaintiff is entitled to the relief of declaration as prayed for in the Plaint, further directing the Appellants/D1, D3 to render accounts for the collection of rents for three years prior to suit and future period till delivery of vacant possession, besides granting a relief of permanent injunction as against the Appellants/D1,D3 from collecting rent from the suit property and found that the suit is maintainable and resultantly granted decree in favour of the First Respondent/Plaintiff as prayed for with costs. 3. 3. It is the contention of the Learned Counsel for the Appellants/D1,D3 that the second Respondent/Second Defendant has vacated from the suit property pending Appeal under the Appellants/D1,D3, aggrieved against the Judgment and decree of the trial Court made in O.S.No.5805 of 2007, dated 30.01.2009 has preferred A.S.No.907 of 2009 before this Court and till the disposal of the Appeal, this Court pleased to grant stay of the trial Court Judgment and Decree passed in O.S.No.5805 of 2007, dated 30.01.2009 in the interest of justice. 4. The Learned Counsel for the Appellants/D1, D3 urges before this Court that the trial Court has not considered the principle of waiver right of the First Respondent/Plaintiff by virtue of the construction of the property by the husband of the First Appellant/ First Defendant at his costs, after receiving home loan from Citi Bank and Ex.A.6 Letter from the Bank along with enclosures will prove that the First Appellant/First Defendants husband has raised the Home Loan and the First Appellant/First Defendant and her father are the Co-applicants and it is only the First Appellant/First Defendants husband is discharging the debt in monthly equal installments. 5. The Learned Counsel for the Appellants/D1,D3 submits that the suit property has been demolished and a new construction has been put up and the Second Petitioner/Second Appellant is spending a major portion of his salary towards discharge of Home Loan and in the event of First Respondent/Plaintiff executing the trial Court Decree then, the petitioner will suffer substantial loss and great prejudice will be caused to them and therefore prays for the grant of Stay of the operation of the trial Courts Judgment and Decree passed in O.S.No.5805 of 2007, dated 30.01.2009. 6. Per contra, it is the contention of the Learned Counsel for the First Respondent/Plaintiff that the First Respondent/Plaintiff has settled the suit property upon the First Petitioner/First Appellant and that the First Respondent/Plaintiff has executed two settlements of the front portion of his property upon his two sons reserving life estate for himself and the settlees have demolished the three portion and have constructed new building under the First Respondent/ Plaintiff is enjoying the rental income from the new buildings constructed by his sons and there is no reason as to why the First Petitioner/Plaintiff should give up his right to collect the rents from the portion settled upon the First Petitioner/First Appellant. 7. 7. Advancing his arguments, the Learned Counsel for the First Respondent/Plaintiff contends that the Petitioner/Appellants/D1,D3 are liable to pay the costs of Rs.61,494/-besides they are to render accounts of the income of the suit property and therefore, there is no need for the petitioners to seek suspension of the decree of the trial Court etc. 8. Proceeding further, it is the submission of the Learned Counsel for the First Respondent/Plaintiff that the First Respondent/Plaintiff has filed E.P.No.735 of 2010 before the Executing Court (Learned IX Assistant Judge, City Civil Court, Chennai) for realisation of costs ordered by the trial Court and further another E.P.No.2331 of 2010 has been filed by the First Respondent/Plaintiff seeking delivery of possession on the file of the Learned XI Assistant Judge, City Civil Court, Chennai and that as on date, the Execution Petitions are pending and since there are no bonafides in the conduct of the Petitioners/Appellants, the M.P.1 of 2009 filed by the Petitioners/Appellants praying for Stay of the operation of the trial Courts Judgment and Decree in O.S.No.5805 of 2007, dated 30.01.2009 may be dismissed by this Court, in the interest of justice. 9. At this stage, this Court pertinently points out in M.P.1 of 2009 in A.S.No.907 of 2009, this Court, on 07.10.2010 has granted the relief of Interim suspension of the operation of the Judgement and Decree in O.S.No.5805 of 2007, dated 30.01.2009, for a period of four weeks herefrom. 10. It is to be borne in mind that the power of the Appellate Court to grant stay is discretionary and it flows from the jurisdiction conferred on it, which is equitable in nature, as opined by this Court. Also dispossession of the concerned parties, who were in possession during pendency of an Appeal is really a substantial loss to the parties applying for the relief of stay within the meaning of Order 41 Rule 5 of Civil Procedure Code, in the considered opinion of this Court. 11. Apart from the above, one cannot loose sight of an important fact that in law an Appeal is a continuation of trial Courts original proceedings viz., original suit. 12. A word may confers a discretion on the Appellate Court stay or not to stay as per decision Santosh v. Bhai, AIR 1955 Punjab 47. 13. 11. Apart from the above, one cannot loose sight of an important fact that in law an Appeal is a continuation of trial Courts original proceedings viz., original suit. 12. A word may confers a discretion on the Appellate Court stay or not to stay as per decision Santosh v. Bhai, AIR 1955 Punjab 47. 13. On a careful consideration of respective contentions and in view of the fact that the Petitioners/Appellants/D1,D3 have filed M.P.No.1 of 2009 praying for the relief of Stay of the operation of the Judgment and Decree dated 30.01.2009 passed by the trial Court in O.S.No.5805 of 2007 and also because of the fact earlier on 07.10.2010, this Court has granted the relief of Interim suspension of operation of the Judgment and Decree passed by the trial Court, for a period of four weeks herefrom and considering the facts and circumstances of the case, this Court, by exercising its Appellate jurisdiction order the Interim suspension of the operation of the Judgment and Decree dated 30.01.2001 in O.S.No.5805 of 2007 passed by the Learned Additional District Judge, (Fast Track Court NO.V), Chennai, till the disposes of the Appeal and accordingly disposes of the M.P.No.1 of 2009 without costs. However, the parties are directed to get ready for early disposal of the main Appeal in A.S.No.907 of 2009, within a period of three weeks from today. The Registry is directed to list the matter thereafter.