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2014 DIGILAW 92 (CHH)

NINDER SINGH v. HARISH CHANDRA GULATI

2014-02-25

SANJAY K.AGRAWAL

body2014
JUDGMENT 1. The substantial questions of law involved and to be answered in this second appeal are as under: "(i) Whether the suit filed in January, 1996 for a projected need to arise in September, 1996 would be premature and it can be said that right to seek eviction has been crystallized in favour of the landlord and thus, the Courts below committed an illegality by granting a decree under Section 12(1) (e) of the Act? (ii) Whether in the absence of any finding that the construction made by the tenant is detrimental to the interest of the landlord and without compliance of the provisions contained in Section 12(10) of the Act, a decree under Section 12(1) (m) of the Act can be granted? (iii) Whether the tenant having paid the entire arrears of rent in the trial Court, the decree under Section 12(1) (a) of the Act could have been passed by the Courts below? 2. In order to answer the afore-stated substantial questions of law, required facts to be noticed in nutshell, are as under: 2.1 The plaintiff instituted a suit for eviction on the grounds enumerated under Sections 12(1) (a) and 12(1) (e) of the C.G. Accommodation Control Act, 1961 (hereinafter referred to as "the Act"), by pleading inter alia that the defendant had occupied the scheduled suit accommodation since 1979 at the monthly rent of Rs. 500. It was further pleaded that despite demand-cum-quit notice the defendant has neither paid the rent since 1993 nor handed over the vacant possession of the scheduled suit accommodation, therefore, defendant/tenant is liable to be evicted under Section 12(1) (e) of the Act. 2.2 It was further pleaded that the plaintiff was an employee of the Bhilai Steel Plant (BSP) and was going to retire in September, 1996, therefore, he required the scheduled suit accommodation bonafidely for his residence and for the education of his children and for the said purpose, he has alternative reasonably suitable accommodation in the township of Raipur, therefore, he is entitled to get a decree for eviction under Section 12(1) (e) of the Act. 2.3 It was also pleaded that during pendency of the suit, the defendant has started illegal construction in the scheduled suit accommodation in the month of June-July, 1996 without prior permission of the plaintiff and which is detrimental to the scheduled suit accommodation, therefore, the defendant is liable to be evicted on the ground enumerated under Section 12(1)(m) of the Act. 2.4 The defendant has filed written statement, admitted the plaintiff of landlord and tenant and denied the bona fide need of the plaintiff. The notice was not served upon him properly, therefore, the plaintiff is not entitled to obtain a decree under Section 12(1) (a) of the Act. 2.5 It was further pleaded that the plaintiff's need is not bonafide as he is not retired from the service and plaintiff is also not entitled for decree under Section 12(1)(m) of the Act and prayed that the suit be dismissed with cost. 2.6 The Trial Court, by its judgment and decree dated 18/10/2001 decreed the suit holding that the defendant has not paid entire arrears of rent Rs. 18,000 despite demand-cum- quit notice and is therefore, liable to be evicted under Section 12(1)(a) of the Act. It was further held that the plaintiff requires the scheduled suit accommodation bonafidely and is entitled to obtain a decree under Section 12(1) (e) of the Act. It was also held that the defendant has raised illegal construction in the scheduled suit accommodation without prior permission of the plaintiff and which is detrimental to the plaintiff's interest, therefore, liable to be evicted under Section 12(1)(m) of the Act. 2.7 Feeling aggrieved against the judgment and decree of the trial Court, the defendant/tenant filed first appeal under Section 96 of the Civil Procedure Code, 1908 before the First Appellate Court. The First Appellate Court, by its impugned judgment and decree dated 18/08/2003 dismissed the appeal affirming the judgment and decree passed by the Trial Court granting decree of eviction. 3. The First Appellate Court, by its impugned judgment and decree dated 18/08/2003 dismissed the appeal affirming the judgment and decree passed by the Trial Court granting decree of eviction. 3. Questioning the legal acceptability and legal correctness of the judgment and decree passed by the First Appellate Court, the defendant has filed this second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC") challenging the impugned judgment and decree dated 18/08/2003 passed by Third Additional District Judge, Raipur in Civil Appeal No. 45-A/2002, by which, the First Appellate Court has affirmed the judgment and decree dated 18/10/2001 passed by Second Civil Judge Class-II, Raipur in Civil Suit No. 219-A/1998. 4. Mr. D.P. Shanna, learned counsel appearing for the appellant/defendant would submit that both the Courts below have fallen into grave legal error in granting decree on the ground under Section 12(1) (e) of the Act, ignoring the fact that the eviction suit was filed by plaintiff on 02/01/1996 for his projected and premature need to arise in the month of September, 1996. He would further submit that Section 12(10) of the Act is mandatory in nature mill non-compliance of the same would disentitle the plaintiff for decree under Section 12(1) (m) of the Act. He would lastly submit that entire arrears of rent has been paid by tenant during the pendency of appeal, decree granted by both the Courts below under Section 12(1) (a) of Act is also bad in law. Therefore, the judgment and decree of both the Courts below deserves to be set-aside and the plaintiff's suit be dismissed with cost. 5. Replying the submissions made on behalf of appellant/defendant, Mr. Sanjay S. Agrawal, learned counsel appearing for the respondent/plaintiff would submit that the bonafide need of plaintiff was 'felt need' or a 'need in praesenti' and was not a 'need in future'. He would further submit that while passing the decree under Section 12(1) (m) of the Act, decree under Sections 12(1) (e) and 12(1) (a) of the Act has also been passed, therefore, Section 12(10) of the Act is not attracted. He would lastly submit that the defendant is not entitled for protection under Section 12(3) of the Act, as there is no evidence on record that he has made payment or deposit as required under Section 13(1) of the Act. He would lastly submit that the defendant is not entitled for protection under Section 12(3) of the Act, as there is no evidence on record that he has made payment or deposit as required under Section 13(1) of the Act. Therefore, the judgment and decree passed by both the Courts below are legal and valid and the appeal deserves to be dismissed as there is concurrent finding of fact. 6. I have heard the learned counsel appearing for the patties and perused the judgment and decree of both the Courts below with utmost circumspection. Answer to substantial question No. 1 : 7. Plaintiff- Harish Chandra Gulati filed the civil suit ort 02/01/1996 for eviction stating inter alia that presently he is posted in the Bhilai Steel Plant, staying at Bhilai and is due to retire in the month of September, 1996, and he wish to settle at Raipur along with his family. He has no other, alternative reasonably suitable accommodation in the township of Raipur, therefore, scheduled suit accommodation is bonafidely required for his residence. The defendant while filing the written statement has denied the ground of bonafidc need under Section 12(1)(e) of the Act. 8. The plaintiff- Harish Chandra Gulati has examined himself as PW-1 on 14/12/2000 and has deposed that he has retired from the Bhilai Steel Plant in the month of September, 1996 and residing in the borrowed accommodation and he has no alternative reasonably suitable accommodation except the scheduled suit accommodation in the township of Raipur. 9. On the other hand, neither the defendant has examined himself nor any evidence has been brought on record to deny the fact that plaintiff has not retired from Bhilai Steel Plant and there is no bonafide need of the scheduled suit accommodation to the plaintiff. 10. The question that arises for consideration is whether suit filed by the plaintiff on 02/01/1996 for his' felt need' on his impending retirement in the month of September, 1996 can be said to be a 'felt need' within the meaning of Section 12(1) (e) of the Act? 11. It is well settled that landlord is entitled to anticipate his requirement arising in reasonably foreseeable future and it is not the requirement of the law that landlord's need must be immediate and an existing one on the very date of the application for ejectment. 12. In Hemraj Vs. 11. It is well settled that landlord is entitled to anticipate his requirement arising in reasonably foreseeable future and it is not the requirement of the law that landlord's need must be immediate and an existing one on the very date of the application for ejectment. 12. In Hemraj Vs. Rajnath 1980 MPRCJ 65, the Madhya Pradesh High Court has observed that if felt need was to be misinterpreted as a 'need in futuro', the provision for eviction on the ground of bona fide need would stand repealed. Several cases of different High Courts were noticed therein. 13. In Shyamsunder Vs. Krishna Chandra 1981 MPWN 166 , need of accommodation felt on account of marriage of a boy, not yet married but whose SAGAI ceremony was performed, was held to be a need in praesenti. 14. In A. P. Madhavan Vs. M P. Ram Chandra 1970 RCJ 479, V. R. Krishna Iyer, J. (as then his lordship was) spoke as under:- "The concept of bona fide need cannot be narrowly understood or pedantically interpreted but applied in a pragmatic way. It is not necessary that there should be a current urgent need. It is enough if it is reasonably likely to arise in the near future. Knowing that between the institution of the petition and the ultimate order from the Apex Court years pass, it will be as good as repealing the provisions for eviction on the ground of bona fide need if Courts insist on landlord's proving a present need as against prospective but certain need. Else when the need confronts him the building will be years away from him. There is a discretion vested in the Court to depart from the general rule that the rights of parties must be determined as on the date of the institution of the action in justifiable circumstances, provided such depature will not cause injustice." 15. In J.G. Kohli Vs. Financial Commissioner, Haryana and Anr. 1975 RCJ 689 the need of a Government servant applying for ejectment of his tenant anticipating his requirement on account of his impending retirement was held to be sustainable. It was observed :- "It is not the requirement of the law that the landlord's need must be immediate and an existing one on the very date of the application for ejectment. Indeed he is entitled to anticipate his requirement in a reasonable foreseeable future." 16. It was observed :- "It is not the requirement of the law that the landlord's need must be immediate and an existing one on the very date of the application for ejectment. Indeed he is entitled to anticipate his requirement in a reasonable foreseeable future." 16. In Ramsingh Vs. Sagarchand 1978(2) RCJ 70, where R. S. Pathak, C. J. (as his Lordship then was) spoke for the Court: "the landlord is entitled to anticipate his requirement arising in reasonably foreseeable future." 17. The Madhya Pradesh High Court in case of Draupadi Bai W/o Ganpatrao Choudhary and another Vs. Prem Singh Jagannath Rathore 1991 MPLJ 426 , held that the requirement of accommodation by landlord can be perceptibly felt it is a 'felt need' or a 'need of praesenti' and not a 'need in future'. Paragraph-8 of the report reads as under: "8. The phraseology used in Section 12(1) (e) of the Act indicates that the Legislature intended to provide 'requirement' in praesenti as a ground for eviction. This has been interpreted to mean that 'need' has to be a 'felt need' in contradistinction with a 'need in contemplation'. If the need is dependent on an event which is sure to happen though it has not yet happened, but if on account of its proximity of time with date of filing of the suit and if on account of certainty its existence can be perceptibly felt, then it is a 'felt need' or a 'need in praesenti' and not a 'need in future'." 18. I find myself in respectful agreement with the view expressed in all the cases referred to herein-above. I find myself in respectful agreement with the view expressed in all the cases referred to herein-above. In the instant case, plaintiff being the responsible elder member of the family knowing fully well, his due retirement in the month of September, 1996, filed the suit for eviction on 02/01/1996 considering that the trial of the application will take its own time and he is sure to retire in the month of September, 1996 and further considering that he is not entitled to occupy the accommodation allotted by Bhilai Steel Plant except for few months that too on payment of penal rent, therefore, it must be held, need in fact has arisen for instituting eviction application and the trial of the plaintiff's suit could not have been postponed till the actual retirement of the plaintiff and the anticipated need did have arisen during the pendency of the suit, upon the retirement of the plaintiff and therefore, it is held that both the Courts below have not committed an illegality in granting the decree under Section 12(1) (e) of the Act and said finding of fact reached by two court below is based on evidence available on record. I hereby affirm the finding and the substantial question of law No.1 is answered accordingly. Answer to substantial question No. 2 : 19. It is the common ground raised by Mr. B.P. Shanna that decree was also passed also on the ground under Section 12(1) (m) of the Act but both the Courts below were fallen into error in not incorporating direction consistent with the provision contained in Section 12(10) of the Act, which provides as under: "12(10) - No order for the eviction of a tenant shall be made on the ground specified in clause (m) of sub-section (1) if the tenant within such time as may be specified in this behalf by the Court restores the accommodation to its original condition or pays to the landlord such amount by way of compensation as it may direct." "12(1) (m) - that the tenant has, without the written permission of the landlord, made or permitted to be made, any such construction as has materially altered the accommodation to the detriment of the landlord's interest or is likely to diminish its value substantially." 20. Under the terms of the aforestated section, no order for eviction of a tenant can be made under Section 12(1) (m) unless the Court specifies a period within which he may restores the suit accommodation to its original condition and pays to the landlord such amount by way of compensation as it may direct. The requirements of Section 12(10) of the Act are mandatory. In a decision reported in Motilal Vs. Yusuf Ali and others 1972 MPLJ 187 , the Madhya Pradesh High Court while dealing with the non compliance of requirement of Section 12(11) of the Act held as under:- "Under the terms of the section, no order for eviction of a tenant can be made under section 12(1) (o) unless the Court specifies a period within which he may vacate the portion encroached upon and pays to the landlord such amount by way of compensation as it may direct. The requirements of Section 12(1) (o) are mandatory." 21. The question for consideration is if the eviction decree has also been granted also on the other ground, apart from ground Section 12(1) (m) of the Act, then whether it is obligatory for the Courts to pass a conditional decree as provided in Section 12(10) of the Act of 1961. 22. The non-issuance of the direction as required under Section 12(10) of the Act while granting decree under Section 12(1)(m) of the Act will make a difference or not came to be considered in case of Pooranchand Vs. Laxminarain 1980 MPRCJ 257, the Madhya Pradesh High Court has been' held that when the, decree has been passed on the other grounds as provided in Section 12(1) of the Act, then the non-issuance of the direction as required under Section 12(10) of the Act will make no difference. Paragraph-6 of the report reads as under:- "I may mention here that when a decree under section 12 (1) (o) of the Act is granted, it is the duty of the Court to pass a conditional decree, namely, that if within the period given by the Court, the defendant vacates the portion on which he has committed the trespass, and pays damages for the purpose then the decree for eviction cannot be enforced. This direction, neither the trial Court has given, nor the appellate Court has given. This direction, neither the trial Court has given, nor the appellate Court has given. Therefore, I will have to see what will be the effect of not giving such a direction and whether it is necessary for me to modify the decree accordingly. I may say here that if I confirm the decree on other grounds also, then whether there is a direction as required under Section 12(1) (o) of the Act or not will make no difference, because if the suit is decreed on other ground, the result will be that the defendant will have to vacate the whole premises in his occupation. Giving of such a direction which is contemplated under Section 12(1) (o) of the Act will be of no consequence. But, I will have to hold that the decree passed by the trial Court and confirmed by the appellate Court suffers from this defect." 23. In case of Dindayal Pachuri Vs. Vimalchand and another 1973 MPLJ 465 , the Madhya Pradesh High Court held as under: "7. Section 12 (1) of the Act in Clauses (a) to (p) provides sixteen grounds for eviction of a tenant. Decrees passed on some of the grounds are absolute but in case of decrees passed on the grounds mentioned in Clauses (f), (g) and (h) some further restrictions are placed by the Act. The ground under Section 12 (1) (f) relates to the need of the landlord for business by proving which he can obtain non-residential accommodation in possession of a tenant. When a decree is passed on this ground, Section 12 (6) puts certain restrictions in the matter of execution of the decree. These restrictions, briefly stated, are that the landlord is not entitled to possession before expiration of two months from the date of the decree and until he pays certain amount as compensation to the tenant. Clauses (g) and (h) of Section 12 (1) entitle a landlord to obtain eviction of his tenant when the accommodation is required for repairs, rebuilding or reconstruction which cannot be carried out without the accommodation being vacated. When a decree is passed on these grounds, the tenant is given an option of re-entry under Section 18. A decree passed on other grounds mentioned in Section 12 (1) is absolute. When a decree is passed on these grounds, the tenant is given an option of re-entry under Section 18. A decree passed on other grounds mentioned in Section 12 (1) is absolute. Thus, if a decree is passed on the ground of subletting mentioned in Clause (b), it is absolute and no further benefit is given to the tenant and no restriction is placed on the landlord in the matter of execution of the decree. Now, the argument of the learned counsel for the appellant is that if a decree is passed, as in the instant case, on the ground in Clause (b) as also on the ground in Clause (f) of Section 12 (1), the restrictions provided in Section 12 (6) must still apply, for the decree is still a decree passed under Clause (f) of Section 12 (1). If this argument is accepted then the right of a landlord to get an absolute decree by proving sub-letting under Clause (b) would be defeated simply because he has proved an additional ground under Clause (f) which enables him to get a decree with restrictions. Thus, a landlord having two grounds in his favour will be at a disadvantage as against a landlord who has only the ground under Clause (b) for his support. Such an anomalous result could not have been intended by the legislature. Sub-section (6) of Section 12 cannot be read in isolation. Reading the section as a whole it is quite clear that Section 12 (6) applies when the decree is passed under Clause (f) and is not based on any other ground in other clauses of Section 12 (1) which entitle the landlord to get an absolute decree." 24. Sub-section (6) of Section 12 cannot be read in isolation. Reading the section as a whole it is quite clear that Section 12 (6) applies when the decree is passed under Clause (f) and is not based on any other ground in other clauses of Section 12 (1) which entitle the landlord to get an absolute decree." 24. Having ascertained the legal position, keeping in the mind, the principles laid down therein, reverting back to the facts of the instant case, I find that Trial Court also granted decree for eviction under Section 12(1)(a) & (e) of the Act, apart from decree under Section 12(1) (m) of the Act, thus though Section 12(10) of the Act is mandatory in nature and decree under Section 12(1) (m) of the Act of 1961 suffers from the defect of not being a conditional decree as required under Section 12(10) of the Act yet the non compliance of Section 12(10) of Act would not make the decree bad in law as decree under Section 12(1) (a) and 12(1) (e) of the Act has also been passed and by virtue of the law laid down in the Pooranchand and Dindayal Pachuri (Supra), decree for eviction passed by trial court as well as first appellate court is held valid and in accordance with law. Substantial question of law is answered accordingly. Answer to substantial question No.3 :- In order to answer, this question, it will be profitable to note section 12(1) of the Act. 25. Section 12 - Restriction on eviction of tenants - (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely:- (a) that, the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner; 26. Such a ground is one of the grounds in Section 12(1) of the Act which enables the landlord to evict the tenant if he could successfully establish that the tenant did in fact fall in arrears of rent and had neither tendered nor paid the amount within the period specified under Section 12(1) (a) despite a demand. 27. Section 13(1) of the Act stipulates that the tenant shall either deposit in the court or pay to the landlord an amount calculated at the rate of rent at which it was prayed for by the landlord for various periods specified therein. Such a deposit or payment is required to be made in two contingencies. They are:- (i) upon institution of the suit for eviction of the tenant irrespective of the ground on which eviction is sought; or (ii) in an appeal or in a proceeding by the tenant against the decree or order of eviction. It is further stipulated that such a deposit or payment is required to be made within a period of one month of the service of the summons, if the deposit is being made during the pendency of the suit or within a period of one month from the date of institution of appeal or other proceeding as the case may be. Further, the said sub-section also recognizes the authority of the court to extend in its discretion the said period of one month on an application made to it. Sub-section (2) provides for the procedure in case of any dispute regarding the rate of rent payable whereas sub-section (3) provides for the procedure to be followed in case of any dispute regarding the person to whom the rent is payable. Sub-section (2) provides for the procedure in case of any dispute regarding the rate of rent payable whereas sub-section (3) provides for the procedure to be followed in case of any dispute regarding the person to whom the rent is payable. Section 13(5) of the Act reads as follows: "13(5) - If a tenant makes deposit or payment as required by subsection (1) or sub-section (2), no decree or order shall be made by the court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the court may allow such cost as it may deem fit to the landlord." A reading of Section 13, clearly indicates that the payment or the deposit of rent into the court by the judgment debtor (tenant) is contemplated only during the pendency of the suit for eviction or any appeal (by the tenant) against a decree or order of eviction. Sub-section (5) declares that if a tenant makes deposit or payment as required under sub-section (1) or (2), no decree or order for recovery or possession of the accommodation can be passed. Sub-section (5) only protects the defaulting tenant in possession in the event of his complying with the requirement of Section 13(1) or (2) only in those cases where the eviction is sought on the ground of arrears of rent falling under section 12(1) (a). 28. Reverting back to the facts of the case it would be appear that the trial court in its judgment has recorded a finding that defendant had not paid arrears of rent of Rs. 18,000/- despite demand notice by the plaintiff and therefore, defendant is liable for eviction under Section 12(1) (a) of the Act. In the second appeal filed before this court the following interim order was passed on 11.11.2003 : "11.11.2003 - Having heard and considered the facts and circumstances of the case, it is directed that the appellant shall not be dispossessed from the suit house subject to appellant's depositing all arrears of rent and depositing money part of decree, if any, within 15 days from today. He shall further continue to deposit the rent by 15th of every month. " Thereafter on 13.02.2004 again appellant was directed to comply the order dated 11.11.2003. He shall further continue to deposit the rent by 15th of every month. " Thereafter on 13.02.2004 again appellant was directed to comply the order dated 11.11.2003. "13.02.2004 - It is directed that if the order dated 11.11.2003 passed by this Court is not complied with, the stay order stands vacated and if the conditions as directed in the said order have been complied with, then alone the stay will remain operative and the executing Court will decide the matter expeditiously and if required the matter will be heard on day to day basis." It appears the appellant/defendant did not deposit the rent as directed by this court and respondent/plaintiff has filed an application on 21.10.2004 for appropriate order to secure the compliance of order dated 13.02.2004 for which time was granted to appellant on 03.11.2004 and thereafter on 04.03.2005 the appellant filed an application for proper order stating that the entire amount of rent due has been paid. But the fact remains that defendant/appellant has failed to demonstrate that he has deposited the entire rent in terms of Section 13(1) of the Act. The First Appellate Court has not recorded any finding that entire amount of arrears has been paid after the decree of the trial Court and during the pendency of the appeal. The appellant/defendant has also not filed any application for extension of time for payment of arrears of rent due. Therefore, the First Appellate Court is justified in granting decree under Section 12(1) (a) of the Act. The Supreme Court in case of R.C. Tamrakar Vs. Nidi Lekha 2002 JLJ 69 , is held as under : "8. Reading both the sub-sections together we are of the opinion that the benefit of sub-section (5) shall be available to a tenant provided he tenders the arrears of rent or deposit it in the Court within one month of service of writ of summons or notice of appeal or any other proceeding or within one month of the institution of the appeal or any other proceeding by the tenant or within such further time as the Court may on an application made to it allow in this behalf. In the case in hand the tenant did not deposit the an-ears, rent either prior to filing of the suit or during its pendency before the trial Court. In the case in hand the tenant did not deposit the an-ears, rent either prior to filing of the suit or during its pendency before the trial Court. In the first appellate Court rent was deposited and it was not clear whether he continued to deposit the rent as per sub-section (1) of Section 13. The first appellate Court set aside the findings of defaulter on the ground that the rent was deposited in the appellate Court. The High Court was of opinion that after the trial Court passed the decree holding that the tenant was in the an-ears of rent, mere depositing the amount without filing an application for extension of time for payment of all the arrears of rent due, the finding of the appellate Court that tenant was not a defaulter is not sustainable. The High Court further recorded that the first appellate Court did not give any finding that entire 'amount of arrears of rent was paid. This finding of the High Court cannot be faulted in view of clear provision of subsection (1) of section 3 and, therefore, tenant is not entitled to get protection under sub-section (5)." Thus, it cannot be held that tenant/defendant has deposited the rent due after passing of the decree by the trial Court and during the pendency of the appeal. Thus this substantial question of law is answered accordingly. Conclusion :- 29. Resultantly, the second appeal filed by the defendant deserves to and accordingly dismissed, the judgment and decree passed by the first appellate court is hereby affirmed and suit stands decreed with costs. A decree be drawn up accordingly. 30. However, at the request of the Mr. Sharma, learned counsel for the appellant time up till 27.07.2014 to vacate the suit accommodation is granted subject to following condition: (i) The Appellant/Defendant shall file before the trial Court an written undertaking on usual terms within three weeks from today. (ii) The Appellant/Defendant pay to the Respondent/Plaintiff or deposit in the trial Court compensation for use and occupation of premises Rs. 600/- per month w.e.f. 01.03.2014 till the date of actual' vacation. The deposit shall be made by 15th of every succeeding calendar month. (iii) Arrears, if any, payable at the contracted rate shall be deposited by the Appellant/Defendant. (iv) It is made clear, if undertaking is not furnished as directed, decree would be executable forthwith. Appeal Dismissed.