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2017 DIGILAW 710 (RAJ)

Dilip Singh Through Lrs v. Anita Sharma

2017-03-07

JAINENDRA KUMAR RANKA

body2017
ORDER : Jainendra Kumar Ranka, J. 1. The instant misc. application has been filed on behalf of the appellants u/s 151 read with sec 148 CPC for extension of time upto 16.3.2016 to deposit the arrears of mesne profits for the period 25.5.2015 to 25.11.2015, for a period of six months, amounting to Rs.1.5 lakh in pursuance to the order date 12.10.2015 passed by this court while admitting the appeal and in granting stay. 2. The brief facts noticed are that a decree was passed by the trial court on 25.5.2015 in relation to the suit property D-8, Vaishali Nagar, Jaipur, and the appellants filed an appeal before this court, and this court after hearing all the learned counsel for the parties on 12.10.2015, admitted the appeal. Simultaneously following order came to be passed insofar as payment of mesne profits by the appellants to the respondent and it would be relevant to quote para 5 of the order :- In that view of the matter, the execution of the impugned decree is stayed on the condition that the appellants shall pay mesne profits @ Rs.25,000/- per month to the respondent No.1 with effect from the date of decree, pending the appeal. The appellants shall pay the arrears within four weeks from today, and continue to pay mesne profits regularly as directed. It is needless to say that if the appellants fail to deposit the mesne profits as directed consecutively for two months, the respondent No.1 shall be at liberty to execute the decree without any further order from the Court. The appellants shall also not sell, transfer, alienate or create any third party interest in the suit premises. Learned counsel for the respondent No.1 is directed to furnish the number of her bank account to enable the appellants to deposit the said mesne profits, within one week from today failing which the mesne profits shall be deposited by the appellants before the trial court and the respondent No.1 shall be at liberty to withdraw the same. 3. Learned counsel for the respondent No.1 is directed to furnish the number of her bank account to enable the appellants to deposit the said mesne profits, within one week from today failing which the mesne profits shall be deposited by the appellants before the trial court and the respondent No.1 shall be at liberty to withdraw the same. 3. The direction, inter alia, for the appellants was that an amount of Rs.25,000/- was to be paid on month to month basis regularly and insofar as the arrears are concerned i.e. from the date of decree to the passing of the said order, the said amount was to be deposited within a period of four weeks from today (12.10.2015), and it is also clear that in case the appellants fail to deposit the arrears consecutively for two months, the respondent was granted liberty to execute the decree without any further order from the court and it was also directed that the respondent shall provide copy of the bank account. 4. It transpires from the file that on 16.10.2015 the respondent gave her bank details duly signed by her wherein account number was shown as 4201155000016 having bank a/c with Karur Vysya Bank. Pursuant thereto, the appellants appear to have issued a cheque (RTGS) in favour of the respondent, Anita Sharma, on 3.11.2015 directing RTGS payment with instruction to credit amount of Rs.1.5 lakh, and in the instruction annexed to the cheque bearing no. 605992, the account number as provide by the respondent, namely 4201155000016 was mentioned, however, the said cheque was not credited to the account of respondent primarily it appeared to the bank that the account number was incorrect. This factum of returning of the said cheque/non credit to the account of the respondent, though as per the bank account of the appellants showed that it was credited to her account (appellant) on 4.11.2015 by observing account does not exist, however, it appears that this factum of credit escaped attention of the appellants. 5. Since there was a default or violation of the direction of this court, the respondent moved an application to the trial court/executing court that since the order of this court has been violated and in clear defiance of the court order the appellants failed to deposit arrears of the amount as directed, accordingly the respondent was entitled to get the decree executed. 6. 6. Prima facie, the trial court appeared to be satisfied that there was default on the part of the appellants and the decree is required to be executed. 7. An application as aforesaid, came to be filed by the appellants for extension of time and simultaneously an application was moved before the trial court bringing the facts on record and it was, inter alia, pleaded that as soon as it came to be knowledge of the appellant (Smt Mohan Kanwar, being an old lady), an application was moved by the respondent dated 5.3.2016 before trial court and on coming to know of bank details deposited the arrears in the correct bank account. 8. Learned counsel for the appellants contended that there was no wilful default and it was a bona fide mistake or error as initially the bank account details given by the respondent herself, the appellants deposited the requisite amount by RTGS on 3.11.2016 and she being an old lady was not aware that the said cheque has returned and has been credited to her account, and no sooner it came to the notice after the respondent moved an application before the trial court in the execution proceedings, then the said amount was deposited and contends that even otherwise, the delay, if any, being not intentional, and it being a bona fide error/mistake, the period deserves to be extended upto 16.3.2016 and relied on D.V. Paur v. Manisha Lalwani (2010) 8 SCC 546 , Salem Advocate Bar Association, T.N. v. Union of India (2005) 6 SCC 344 . 9. Per contra learned counsel for the respondent vehemently contended drawing attention to the order of this court on 12.10.2015 that it is a clear cut case of flouting of order of this court and such appellants deserves no indulgence in granting extension or otherwise. 9. Per contra learned counsel for the respondent vehemently contended drawing attention to the order of this court on 12.10.2015 that it is a clear cut case of flouting of order of this court and such appellants deserves no indulgence in granting extension or otherwise. Learned counsel contends that the appellants holds Privilege Salary Account of Level-4, which according to him means that all information of every transaction immediately whether credit or debit, is brought to the notice of the bank account holder, and immediately when the amount was credited to her bank account on the next date, being 4th November, she was aware of non credit of amount of Rs.1.5 lakh to the bank of respondent and the appellant ought to have herself made efforts in taking recourse of depositing in the correct bank account which was even known to her and to the counsel for the appellants. Learned counsel further contends by drawing attention to the chart that there is abnormal delay which cannot be condoned and both the appellants as well as the counsel for the appellants were aware of the correct bank account number of the respondent and objected to extending the period or otherwise granting any leverage to such a defaulter. Learned counsel further contends that the respondent is suffering and after long litigation she succeeded and now gross default has been committed by the appellants, therefore, the appellants should suffer, for her own lapses and lapses of the counsel and relied upon Markanda Mahapatra v. Varada Kameswar Rao Naidu & Ors, AIR 1949 Patna 197, Veeramma v. Appayya & Ors., AIR 1957 AP 965 , Raghunath & Ors. v. State of U.P. & Ors. 1973 (1) SCC 564 . 10. I have considered the arguments advanced by the learned counsel for parties and perused the material on record. In my view, the error appears to be bona fide one, and deserves indulgence by this court. v. State of U.P. & Ors. 1973 (1) SCC 564 . 10. I have considered the arguments advanced by the learned counsel for parties and perused the material on record. In my view, the error appears to be bona fide one, and deserves indulgence by this court. Though court was conscious while granting order of 12.10.2015 that arrears have to be deposited within a period of four weeks and month to month amount has to be deposited in the bank account of the respondent, but the facts noticed herein above indicates that initially a bank account number was given by the respondent herself and the appellants acting bona fide, deposited the said amount on 3.11.2015, by RTGS in the account of respondent and on perusal of the bank account produced by the counsel for the appellants, the appellant had sufficient balance in her bank account on 3.11.2015 when the said cheque was issued. Though learned counsel for the respondent has drawn attention of this court that counsel appearing at the lower stage was aware of the correct bank account details as an application was moved by the counsel for the appellants wherein it was clearly stated that the appellant has deposited amount of Rs.1.5 lakh in the new account number which was depicted in the application before the trial court/executing court, however, in my view, merely because at the stage of execution one bank account number was shown, it may not be relevant insofar as considering such a case where execution can take place, particularly when on the facts noticed hereinbefore, certainly a mistake has been committed by the counsel for the appellants, but from the facts brought on record, in my view, it transpires that it is a bona fide one and an inadvertent mistake has been committed. It is also not brought on record by counsel for the respondent what made the respondent give a bank account number duly signed by her and one Mr. N.C. Sharma, Adv., which never existed (certificate of ICICI Bank dated 16.3.2016 A-9). 11. It is also not brought on record by counsel for the respondent what made the respondent give a bank account number duly signed by her and one Mr. N.C. Sharma, Adv., which never existed (certificate of ICICI Bank dated 16.3.2016 A-9). 11. It is true that one is bound by the arguments raised by counsels and certainly binding on the parties as held by the various courts referred to hereinbefore and relied upon by the learned counsel for the respondents but it is equally important fact that for the lapse of a counsel, litigant/appellants need not suffer, at least to this extent where it clearly proved a bona fide error. 12. For what has been observed herein above, the application for extension of deposit of the amount of Rs.1.5 lakh to the bank account of the respondent on 16.3.2016 is hereby extended. 13. Accordingly, the application stands allowed. 14. In view of the aforesaid order, the Civil Misc. Second Stay Application no.1894/2016, moved by the appellants, become infructuous, and the order dt 12.10.2015 becomes operative.