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2013 DIGILAW 298 (ORI)

Ananta Charan Pothal v. Guramani Pothal

2013-08-14

R.Dash

body2013
JUDGMENT 14.8.2013 - This is an application under Order 41 Rule 5 read with Section 151 of the C.P.C. arising out of R.S.A. No.224 of 2012. 2. The appellant-petitioner is the judgment-debtor in Execution Case No.4 of 2012 pending in the court of the learned Civil Judge (Senior Division), Balasore. Appellant-petitioner has preferred the appeal challenging the judgment and decree passed by the learned lower appellate court confirming the judgment and decree of the trial court in a suit for partition bearing T.S. No.403 of 1990-1 in the court of the learned Additional Civil Judge (Senior Division), Balasore which was brought by the appellant-petitioner and was dismissed by the learned trial court. In their written statement, the respondent-O.P. Nos.1 to 3 (defendant Nos.1 to 3 in the suit) had made a counter-claim seeking declaration of their title over Schedule P and Q properties as mentioned in the written statement. The plaintiff-appellant denied the counterclaim challenging the title and possession of defendant Nos.1 to 3 over Schedule P and Q properties. Learned trial court rejected the counter-claim but the learned lower appellate court allowed it declaring the title of defendant Nos.1 to 3 over the counter-claim properties and directed eviction and recovery of possession. Thus, the Execution Proceeding is regarding delivery of possession of the counter claim properties which is, admittedly, in the occupation of the appellant-petitioner. 3. In the present petition, the petitioner in support of the petition for stay of the Execution Proceeding, has contended that he has got a very good prima facie case and fair chance of success in the Second Appeal and that unless the Execution Proceeding is stayed, the petitioner who is, admittedly, in possession of the properties will be highly prejudiced and will suffer substantial loss. 4. In their objection, the opposite party-respondent Nos.2 and 3 (Respondent No.1 has died during pendency of the Second Appeal leaving behind respondent Nos.2 and 3 as his legal heirs) have contended that the appellant has absolutely no chance of success in the Second Appeal and that it is not the appellant but the Respondent Nos.2 and 3 who will suffer substantial loss in the event the Execution Proceeding is stayed. 5. The parties to the suit hail from common ancestor late Sadasiv whose four sons are the four branches of the family tree. 5. The parties to the suit hail from common ancestor late Sadasiv whose four sons are the four branches of the family tree. Plaintiff is one of the sons of Sadasiv’s second son and D.1 to 3 are members of the branch of Mahendra, the 4th son of Sadasiv. There is no dispute between the parties that the joint family property was partitioned long back. According to the plaintiff the sons of Sadasiv partitioned the properties on 28.5.1932 whereas according to D.1 to 3 the partition took place in the year 1929. Defendants 1 to 3 are the widow, son and daughter, respectively, of Mahendra. The plaintiff claims to be the adopted son of Mahendra which is denied by D.1 to 3. So far as Schedule P & Q properties of the counter claim are concerned, plaintiff’s stand is that being the adopted son of Mahendra he has been in possession of the same since 1971. D.1 to 3 admit plaintiff’s possession but their contention is that since Mahendra’s son (D.2) was staying away from her widow mother (D.1), the latter reposing confidence on the plaintiff had entrusted some of her responsibilities to the plaintiff who later on played treachery and creating some documents clandestinely, showing himself to be the adopted son of Mahendra, got possession over the counter claim properties. 6. Admittedly, the plaintiff-appellant has been in continuous possession of the counter claim properties much prior to the institution of the suit. It is to be examined if at this stage of the litigation the executing court should be permitted to go ahead with the execution proceeding to evict the appellant from the properties in question. The foremost factor to be considered before going to pass an order of stay execution of a decree is to find out whether substantial loss will result to the appellant if the execution proceeding is not stayed. In case of a decree for eviction from immovable property, stay of execution should not be granted in a routine manner. The party applying for stay must show that if evicted he or she would suffer substantial loss. However, while considering as to whether in a given case substantial loss will result or not, the court should consider the nature of the property and the character of the possession including past enjoyment of the property. 7. The party applying for stay must show that if evicted he or she would suffer substantial loss. However, while considering as to whether in a given case substantial loss will result or not, the court should consider the nature of the property and the character of the possession including past enjoyment of the property. 7. Defendant-respondent Nos.2 and 3 in their objection have stated that the appellant is in unauthorized occupation of the property which consists of a two storied building situate at Remuna and being used for commercial purpose. According to them the building is within market area of Remuna and if let out it would fetch monthly rent of not less than Rs.15,000/-. It is admitted that the appellant is conducting his business from the ground floor of the building in question. It is not on record as to whether the appellant has got any source of income other than the business he has been running in the suit building. It is quite possible that he has been running the business in that suit premises ever since he came in possession of the building. Under such circumstances, if he is evicted from the building it would cause substantial loss to him. 8. It is not shown that the application for stay has been made with unreasonable delay. So far, security is concerned the appellant-petitioner can be asked to furnish security for the due performance of such decree or order as may ultimately be binding upon him. Under such circumstances, this Court is in favour of stay of further proceeding in the execution case. 9. The main grievance of D.1 to 3 is that for a very long period, the appellant-petitioner has been enjoying the suit building commercially depriving them from any financial benefit. It is submitted that the litigation has already lasted for more than 22 years and it is uncertain as to when the lis will come to an end. Under such circumstances, it is submitted, the respondent-O.P.Nos.2 and 3 who have already suffered a great deal of loss will further suffer substantial loss in the event the execution proceeding is stayed. Much emphasis is also given to their contention that the appellant does not have a fair chance to succeed in the Second Appeal. Under such circumstances, it is submitted, the respondent-O.P.Nos.2 and 3 who have already suffered a great deal of loss will further suffer substantial loss in the event the execution proceeding is stayed. Much emphasis is also given to their contention that the appellant does not have a fair chance to succeed in the Second Appeal. Without going into the strength and/or weakness of the Second Appeal, it is considered very much essential to safeguard the interest of the respondent-O.P.Nos.2 and 3 who have obtained a decree for eviction of the appellant from the suit building. From the judgment of the learned trial court it is found that these respondents in their counter claim had claimed, inter alia, compensation from the appellant @ Rs.500/-per month till the later’s eviction from the property in question. Even though the learned lower appellate court allowed the counter claim for eviction, it did not pass any order on the aforestated prayer for compensation. Therefore, the concern of the respondent-O.Ps. that in case the lis ultimately goes in their favour they will get delivery of possession of the suit premises but they will be deprived of the financial benefit therefrom till they get delivery of possession of the property which is likely to take a very long time, is well founded. Under such circumstances, the stay of execution should be granted on conditions that the appellant deposits certain amount every month as security till disposal of the Second Appeal so that if the appeal is dismissed the money so deposited should be held to have been credited to the decree holders. 10. In M/s. Atma Ram Properties (P) Ltd. v. M/s. Federal Motors Pvt. Ltd., reported in 2004 (10) SCALE 345 , the Hon’ble Supreme Court have held that while passing an order of stay under Rule 5 of Order 41 of the CPC the appellate Court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed. It is further observed that such terms must be reasonable. 11. In the result, the Misc. Case is allowed. It is further observed that such terms must be reasonable. 11. In the result, the Misc. Case is allowed. Further proceeding in Execution Case No.04 of 2012 pending in the Court of the learned Civil Judge (Senior Division), Balasore shall remain stayed till disposal of the Second Appeal subject to the petitioner-appellant depositing every month a sum of Rs.2,500/-(Rupees two thousand five hundred) from the month commencing September, 2013 till disposal of the Second Appeal and in case the Second Appeal is dismissed, the money so deposited with accrued interest shall be held to be to the credit of the decree holder and the appellant shall not be permitted to withdraw the same, otherwise, the appellant shall be entitled to withdraw the amount in deposit. For the purpose of such deposit, a recurring deposit account be opened in the name of the Civil Judge (Senior Division), Balasore in a nationalized Bank situate at Remuna and the appellant shall directly deposit the monthly amount in the Bank concerned and keep with him the counterfoil showing such deposit in proof of such deposit. The event of default in making such deposit for two consecutive months shall automatically result in vacation of the order of stay. In case of default in making deposit of the sum in any particular month, the amount due for that month must be deposited in the following month. The Misc. Case is, accordingly, disposed of. There shall be no order as to cost. Misc. Case disposed of.