Oriental Insurance Co. Ltd. v. Atma Ram Properties
2015-12-16
V.K.SHALI
body2015
DigiLaw.ai
ORDER : V.K. Shali, J. CM APPL.31129/2015 (stay) Learned counsel for the respondent is present in pursuance of the advance copy having been served. Hence, service of notice is dispensed with. 2. This is an application filed by the appellant/applicant for setting aside the execution of the decree in Execution Case No. 118/2015 in Suit No. 129/2014, titled Atma Ram Properties v. Oriental Insurance Company Limited & Ors., wherein the respondent/decree holder has sought execution of decree for a sum of Rs.2,42,93,000/- payable by the present appellant/applicant on account of fixation of mesne profits. 3. I have heard the learned counsel for the appellant/applicant as well as the learned counsel for the respondent. I have also gone through the record. 4. The learned counsel for the appellant has contended that in RFA No. 480/2013, titled Oriental Insurance Company Limited v. M/s. Atma Ram Properties the decree of possession which was passed under Order 12, Rule 6 CPC was assailed and the learned counsel for respondent had very fairly conceded that during the pendency of the appeal they shall not execute the decree. It has been further pointed out that the learned Appellate Court had also observed that so far as the staying the conduct of inquiry under Order 22, Rule 12 CPC for fixation of mesne profits in respect of suit property is concerned, no prejudice is likely to be caused to the appellant/applicant in case their inquiry is proceeded ahead with. It has been stated that although the order was passed on 09.10.2013 at that point of time anybody had visualised that the present appeal would remain pending for two years by which time the inquiry with regard to the quantum and the rate of mesne profits would also get decided. It has also been contended since that inquiry has been concluded and a decree passed against the appellant/applicant, the respondent chose to file an application for execution of the decree after a year in pursuance to which a bailiff had come to the office of the appellant for the purpose of effecting attachment for realisation of the decretal amount. 5.
It has also been contended since that inquiry has been concluded and a decree passed against the appellant/applicant, the respondent chose to file an application for execution of the decree after a year in pursuance to which a bailiff had come to the office of the appellant for the purpose of effecting attachment for realisation of the decretal amount. 5. It has been contended that subject to such terms as the Hon'ble Court may deem fit and in the light of the observations passed by this Court on 09.10.2013, the respondents may not proceed ahead with the execution of the decree till the time the present appeal is disposed of on merits. 6. The learned counsel for the respondent/decree holder has stated that even in the execution application the respondent/decree holder had specifically stated that the decretal amount by directed to be deposited by the appellant/applicant/judgment debtor with the Court and the same be kept in an interest bearing deposit till the time the present appeal is decided. It has been stated that it was never the intention of the respondent/decree holder to cause any inconvenience or embarrassment or to steal a march over the applicant/appellant by getting the decree executed while the appeal against the decree of possession still remain pending. Therefore, it has been very fairly conceded by the learned counsel for the respondent that he shall feel satisfied in case the appellant/applicant is directed to deposit such an amount as Court may deem fit with the Registrar General of this Court, subject to the outcome of the present appeal. 7. I have carefully considered the submission made by the respective sides and gone through the record. I feel that although the decree which has been passed against the present appellant/applicant is a money decree and in normal circumstances as no appeal has been filed by the appellant, they ought to have been directed to deposit the entire decretal amount as a security with the Registrar General of this Court, however, keeping in view the special and peculiar facts and circumstances of the case, namely, the appellant/applicant being an Insurance Company, which is a Government company registered under Section 617 of the Companies Act, 1956, and there is no chance of the decretal amount of not being realised in the event of the present appellant/applicant losing the RFA as observed by the learned Predecessor.
However, in order to balance the equities the applicant/appellant be directed to deposit some amount with the Registrar General of this Court. This is more so when the appellant/applicant has not preferred to challenge either the rate or the quantum of mesne profits pursuant to the inquiry held by the learned Trial Court. 8. In view of the aforesaid circumstances, I feel the appellant/applicant be directed to deposit 50% of the decretal amount which would come to approximately Rs.1 crore 22 lacs with the Registrar General of this Court within a period of four weeks from today. On deposit of the aforesaid amount with the Registrar General of this Court, the same shall be kept in an interest bearing deposit for a period of six months, which shall be subject to such orders as the Court may deem fit at the time of disposal of RFA No. 480/2013. 9. Subject to the aforesaid condition being complied with within a period of four weeks, the learned counsel for the respondent has assured the Court that he shall not proceed ahead with the execution henceforth till the next date of hearing. 10. With these observations the application stands disposed of. 11. Dasti. Application disposed of.