Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 1774 (RAJ)

Bheru Singh v. Guru Shri Shanti Sadan Trust

2016-12-06

SANJEEV PRAKASH SHARMA

body2016
JUDGMENT : Sanjeev Prakash Sharma, J. This application (IA No.1653 of 2016) has been filed under section 151 CPC for recovery of possession of suit premises on behalf of appellants. The applicant-appellants have submitted that they filed present appeal before this Court challenging the decree in judgment dated 30.05.2016 passed by the Additional District Judge No.1, Abu Road in Civil Suit No.76/2011 (3/1977) whereby a decree was passed in favour of respondent-plaintiff and possession of the property was directed to be handed over to Guru Shri Shanti Sadan Trust. 2. The plaintiff-respondent had appeared as caveator before this Court and record of the trial court was called vide order dated 17.10.2016. The record was received on 17.11.2016 in the Court, however, it has been stated in the application that the respondents filed Execution Application on 19.10.2016 wherein warrant was issued on 19.10.2016 itself and the next date was fixed on 09.11.2016. It has been further stated that on 07.11.2016 in spite of the fact that the appeal was pending consideration before this Court, the respondents with the help of Police proceeded to take over possession of the house in question where the appellants were residing and articles of appellants have been sealed. The proceedings have been placed on record as Annx.1 along with the application. 3. It has been further stated that appeal along with the stay application was pending disposal before this Court and the process of the court has been disrupted and virtually the stay application, which is pending before this Court, is being rendered infructuous. In the facts and circumstances, it is prayed that he may be directed to restore back the position of the disputed premises as it was existing prior to 07.11.2016. 4. Learned counsel for the appellants has also taken this Court through the judgment dated 30.05.2016 passed by the Additional District Judge No.1, Abu Road, District Sirohi and has stated that he has been in possession of the said premises since 1961 while a suit was instituted in 1977. The counsel has further relied on judgment reported in (2004) 2 SCC 747 Union of India & Ors. v. West Coast Paper Mills Ltd. & Anr., wherein it has been observed in para 15 as under: "15. The counsel has further relied on judgment reported in (2004) 2 SCC 747 Union of India & Ors. v. West Coast Paper Mills Ltd. & Anr., wherein it has been observed in para 15 as under: "15. Even in relation to a civil dispute, an appeal is considered to be a continuation of the suit and a decree becomes executable only when the same is finally disposed of by the Court of Appeal." He has also referred to observations in paras 41 & 42, which reads as follows : "41. In the aforementioned cases, this Court failed to take into consideration that once an appeal is filed before this Court and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy. The subject matter of the lis unless determined by the last Court, cannot be said to have attained finality. Grant of stay of operation of the judgment may not be of much relevance once this Court grants special leave and decides to hear the matter on merit. 42. It has not been and could not be contended that even under the ordinary civil law the judgment of the appellate court alone can be put to execution. Having regard to the doctrine of merger as also the principle that an appeal is in continuation of suit, we are of the opinion that the decision of the Constitution Bench in S.S. Rathore (supra) was to be followed in the instant case." 5. It has been urged that since appeal was pending consideration and the respondents had already entered as caveator, they ought to have restrained themselves from getting the decree executed at least till next date of hearing and the execution done by the court was not proper and legal because the appeal is an extension of the suit proceedings and the possession could not have been taken over from the appellant during pendency of the appeal. 6. Per contra, the learned Senior Counsel Shri Bhansali has pointed out that while the suit was decreed on 30.05.2016, the appeal was filed by the appellants on 07.09.2016 and even thereafter, the case was not listed before the Court up to 17.10.2016 and thus, there has been a laxity on the party of appellants. 6. Per contra, the learned Senior Counsel Shri Bhansali has pointed out that while the suit was decreed on 30.05.2016, the appeal was filed by the appellants on 07.09.2016 and even thereafter, the case was not listed before the Court up to 17.10.2016 and thus, there has been a laxity on the party of appellants. It has been further stated that even on 17.10.2016 this Court had not entertained the appeal and had not even admitted the same for hearing and had only called for record of the trial court. There was no interim order passed by this Court and in view of that, there was no stay operating as against the decree-holder. The execution of the decree was fully justified and the same has been done in accordance with law. 7. It has been also informed that the execution proceedings were initiated by the decree-holder on 13.10.2016. The matter, however, came up before the Presiding Officer on 19.10.2016 and thereafter the suit premises were taken in possession on 07.11.2016. 8. The counsel also taken this Court to various judgments in support of the contention that merely filing of appeal would not stipulate that there is a stay operating in favour of the appellant. For the said purpose, Order 41, Rule 5 CPC has been pointed out to show that stay of proceedings in an appeal is required to be ordered by the appellate court and merely filing of an appeal shall not operate as stay of the proceedings. The judgment in the case of AIR 2001 SC 279 Ratan Singh v. Vijay Singh & others has been cited in support of contention that when a decree has been passed, the same becomes enforceable normally from its date itself. However, there may be circumstances where the decree may become enforceable from some future date or happening. It has been further held as under : "9. Filing of an appeal would not affect the enforceability of the decree, unless the appellate court stays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower court and it is the appellate court decree which becomes enforceable. When the appellate order does not amount to a decree there would be no supersession and hence the lower court decree continues to be enforceable" 9. But if the appeal results in a decree that would supersede the decree passed by the lower court and it is the appellate court decree which becomes enforceable. When the appellate order does not amount to a decree there would be no supersession and hence the lower court decree continues to be enforceable" 9. Another case, reported in (2005) 1 SCC 705 Atma Ram Properties (P) Ltd v. Federal Motors (P) Ltd has been cited to buttress the argument that mere filing of appeal does not operate as stay to a decree nor proceedings in the court below and it is necessary that the appellate court must be asked for to grant stay, which has in its discretion to do so or refuse the same. Admittedly, in the present case no stay was granted by the Court. 10. In a recent judgment reported in (2009) 14 SCC 663 Inderchand Jain (Dead) through LRs v. Moti Lal (Dead) through LRs it has been held : 22. Order 41, Rule 1 of the Code stipulates that filing of an appeal would not amount to automatic stay of the execution of the decree. The law acknowledges that during pendency of the appeal it is possible for the decree holder to get the decree executed. The execution of the decree 19 during pendency of the appeal would, thus, be subject to the restitution of the property in the event the appeal is allowed and the decree is set aside. The court only at the time of passing a judgment and decree reversing that of the appellate court should take into consideration the subsequent events, but, by no stretch of imagination, can refuse to do so despite arriving at the findings that the plaintiff would not be entitled to grant of a decree." 11. In view of the above, it has been submitted that no interference in the possession of the respondent-plaintiff on the suit premises be made after decree has already been executed and the application of appellants be dismissed. 12. In view of the above, it has been submitted that no interference in the possession of the respondent-plaintiff on the suit premises be made after decree has already been executed and the application of appellants be dismissed. 12. After hearing the arguments, this Court is of the firm view that since the First Appeal filed by the appellants is yet to be admitted and there has been no interim order passed in the appeal, the application for restoration of possession on behalf of the appellants and to set aside the execution proceedings already conducted as against him on the basis of decree passed in favour of the plaintiff-respondent, cannot be allowed. 13. I am unable to accept the contention of learned counsel for the petitioner that the view taken in West Coast Paper Mills case (supra) would apply to the present case. Firstly, the law laid down in Ratan Singh (supra) has not been dismissed in the aforementioned case and secondly, if we look into facts of the case in West Coast Paper Mills (supra), it would be seen that the observations, which have been made by the Hon'ble Supreme Court, are in relation to the Limitation Act and are in no manner relating to position where there is no interim order or stay granted on an application moved under Order 41, Rule 5 CPC and in the meanwhile execution proceedings have already been undertaken. 14. The law in unequivocal terms lays down under Order 41, Rule 5 CPC that unless there is an interim order or stay granted by the appellate court, filing of an appeal would not in any manner mean that the decree and judgment of the court below has been stayed. If such a view is allowed to be accepted, which the learned counsel for the appellants wants this Court to lay down, in all the cases where an appeal is filed there would be no necessity to move an application under Order 41, Rule 5 CPC and by merely filing an appeal, the decree of the court below would stand stayed. Such is not position in law and I am afraid, I am not inclined to accept such contention of the learned counsel for the appellants. 15. Such is not position in law and I am afraid, I am not inclined to accept such contention of the learned counsel for the appellants. 15. In view of the above and the judgments cited by learned counsel for the plaintiff-respondent, I am in humble agreement with the view taken by the Apex Court and dismiss the application moved by the appellant.