ORDER S.B. Civil First Appeal No. 225/2017:- Heard learned Counsel for the respective parties. Admit. Issue fresh notice to respondent No.2/3. No further notices need be issued to the other parties since they are already represented by their Counsel. List on 05.03.2020. S.B. Civil Misc. Application Nos. 1/2020 & 2/2020:- 1. Heard learned Counsel for the respective parties. 2. Suffice it to note herein that suit was filed by respondent namely Rajnesh Kishore Dubey @ Rajnish Kishore Dubey for possession and mesne profits against his own younger brother, younger brother's wife and his mother impleading them as defendants No. l, 2 and 3, alleging inter alia, that plot No. G-109 was purchased by the plaintiff in auction by UIT, Jaipur on 8.9.1974 and sale deed was executed in the name of the plaintiff. The plaintiff claimed that he got constructed house thereupon out of his own income in 1978 and thereafter, out of love and affection, he allowed his parents, younger brother and sister to live in the house. After the death of plaintiff's father, plaintiff alleges to terminate the licence of defendants and asked to handover the vacant possession of the house vide notice dated July, 2002. Thereafter, the suit came to be filed by the plaintiff. 3. Defendants No.2 and 3 submitted written statements and alleged that the plot of the house in question was purchased by mother in auction and cost of land was deposited to UIT, Jaipur through cheques from the bank account of their father. It is further stated that the construction of the house was raised by the mother and the plaintiff was acting merely on the basis of sale deed, which had been made out and his name came to be mentioned as natural son of his father. 4. This suit came to be decreed on 03.03.2017 with directions to the defendants to handover the actual and physical possession of the house in question to the plaintiff and that the plaintiff was also entitled to get mesne profit @ Rs. 15,000/- per month from the month of September, 2002 and since the plaintiff had not paid the Court fee, there was further direction to pay the Court fee also. 5. The present first appeal came to be filed by the defendants No. l and 2 on 3.4.2017. 6. 15,000/- per month from the month of September, 2002 and since the plaintiff had not paid the Court fee, there was further direction to pay the Court fee also. 5. The present first appeal came to be filed by the defendants No. l and 2 on 3.4.2017. 6. The appellants filed an application numbered as application No. 1/2020 on 19.02.2020, after serving learned Counsel for respondent No.l advance copy with a prayer to direct that the issuance of warrant for possession with the police aid dated 17.02.2020 may be stayed pending disposal of the first appeal. 7. It is submitted on behalf of the learned Counsel for the appellants that after advance copy was served upon learned Counsel for respondent No.l, mentioning was made before the Court for early listing of the matter and the matter was listed on 24.02.2020. The order sheet shows that on 24.02.2020, Hon'ble Single Judge heard the parties and while the appellants prayed for stay of operation of the warrant of possession, learned Counsel representing the respondent submitted that the warrant of possession of the suit property had already been executed, and pursuant to the same, possession of the disputed property has already been obtained by the plaintiff/respondent, the decree-holder, so the application seeking interim orders has since become infructuous. Learned Counsel for both the parties were directed to file a notarized deposition dealing with the factum pertaining to the execution of the warrant for possession. 8. Learned Counsel representing the appellants has also filed a further application registered as application No.2/2020 with the prayer that the directions may be issued to direct status quo ante i.e. put the appellants' property prior to 24.02.2020 i.e. the date on which the possession was taken by the respondent in execution of the decree. 9. Learned Counsel for the appellants submitted that although appeal had been filed in 2017 but since at the time of filing an appeal, the execution had not been initiated, he had not sought for any stay of the judgment of the decree. However, when the appellants learnt that a warrant for possession had been issued by the learned trial Court 17.02.2020, on 19.02.2020 he filed the first interim application by serving advance copy on the learned Counsel for the respondents and the Court was pleased to direct the matter to be listed on 24.02.2020. However, when the appellants learnt that a warrant for possession had been issued by the learned trial Court 17.02.2020, on 19.02.2020 he filed the first interim application by serving advance copy on the learned Counsel for the respondents and the Court was pleased to direct the matter to be listed on 24.02.2020. Learned Counsel submits that once the plaintiff-respondent learnt of the fact that an interim application had came to be filed before the High Court in the present appeal, in order to frustrate the appellants from moving the Court seeking stay, the respondents alongwith bailiff concerned took over possession of the property on 24.02.2020 at 11.40 A.M. Learned Counsel submits that since the Court had fixed the matter on 24.02.2020 at 2.00 P.M., taking advantage of the fact that the matter was listed at 2.00 o' clock frustrated the application itself. It is asserted that the respondents took action in undue haste and through the bailiff and some individuals broke open the lock of the portion of the house in possession of the appellants and inspite of the fact that the appellants had posted a guard at the premises. 10. Learned Counsel for the appellants places reliance on a judgment of this Court in the case of Mohammad Salim Vs. Smt. Shah in Sah & Ors.- RLR 2006 (1) Page 371 wherein in para 23 it has been observed thus:- "23. In view of the discussions made herein above, I approve the findings of both the Courts below on the issue of prima facie case, balance of convenience and irreparable loss and further agree with the specific observations in case where a person has been dispossessed to overreach the proceedings of the Court and make application infructuous and further in case the possession is not restored, then the tendency of taking the law in hands without following in the due process of law will be increased. The aforesaid act of the party will also result in possible increase of anarchy in the society. I would also further like to add that in such type of cases, restoration of the possession will not only do substantial justice to the respondent-plaintiff but also restore the confidence of the public in Courts. The aforesaid act of the party will also result in possible increase of anarchy in the society. I would also further like to add that in such type of cases, restoration of the possession will not only do substantial justice to the respondent-plaintiff but also restore the confidence of the public in Courts. Thus, both the Courts below have rightly invoked the inherent powers of the civil Court while passing the order of restoration of possession." Learned Counsel for the appellants further places reliance on a judgment of this Court in State of Rajasthan & Ors. Vs. Smt. Sohani Devi & Ors.- AIR 1999 Rajasthan 126 wherein in para 6, it has been observed thus:- "6.................................................What the petitioners did was in hot haste and I am of a clear view that there is no error of jurisdiction committed by learned Additional District Judge in passing the impugned order dated 28-11-96." 11. Learned Counsel for the respondents on the other hand submitted that appellants had taken no steps though the appeal was filed in the year 2017 for the purpose of stay of decree of the order and submitted that under Order 41 Rule 5 readwith Section 144 Civil Procedure Code, the mere filing of an appeal cannot be treated as ipsofacto staying the operation of execution of such decree thereto. In this respect, he places reliance on a judgment of the Hon'ble Supreme Court in the case of Inderchand Jain (dead) through Lrs. Vs. Motilal (Dead) through Lrs, (2009) 14 Supreme Court Cases 663, wherein in para 29 it has been observed thus:- "29. 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 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." 12. 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." 12. In the case of Suresh Kumar Vs. Virendra Kumar, [2007] 2 RLW (Raj.) 1574 this Court in para 17 & 18 has observed thus:- "17. The question when the decree becomes enforceable and executable was directly before the Hon'ble Supreme Court in the case of Ratansingh (supra). The Hon'ble Supreme Court in the case of Ratansingh (supra) held that "normally a decree or order becomes executable from its date. But cases are not unknown when the decree becomes enforceable on some future date or on the happening of certain specified events." and thereafter, laid down that, "Filing of an appeal would not affect the enforceability of the decree, unless the appellate court stays its operation." 18. In the said case of Ratansingh (supra), the decree was passed on 1.8.1973 by the appellate court which superseded the decree passed by the trial court. The appeal was preferred against the appellate decree before the High Court. That appeal was dismissed by the High Court on the ground of delay holding the appeal barred. The Hon'ble Apex Court held that said order of rejection of appeal as barred by time is not a decree and rejection of application for condonation of delay and consequential dismissal of the appeal as time barred is not decree. In that situation, the Hon'ble Apex Court held that since no decree was passed by the High Court in second appeal, the decree of the first appellate court remained unaffected and the enforceability once commenced remained undisturbed for a period of 12 years therefrom. The execution process initiated by the appellant long after the expiry of 12 years from 1.8.1973 is thus irretrievably barred. Therefore, in view of the law laid down by the Hon'ble Apex Court in Ratansingh's case (supra), it is also clear that the decree becomes executable from the date of decree and mere filing of appeal against the decree cannot make the decree inexecutable. Therefore, in view of the law laid down by the Hon'ble Apex Court in Ratansingh's case (supra), it is also clear that the decree becomes executable from the date of decree and mere filing of appeal against the decree cannot make the decree inexecutable. The decree remains executable but its execution can be suspended by the order of the appellate court as per Order 41 Rule 5(1) CPC or by the executing court as per Order 45 Rule 2 CPC." 13. In the case of Ratansingh Vs. vijaysingh & Ors., AIR 2001 Supreme Court 279, the Hon'ble Supreme Court in para 8 and 9 has observed thus:- "8. When is a decree becoming enforceable? Normally a decree or order becomes enforceable from its date. But cases are not unknown when the decree becomes enforceable on some future date or on the happening of certain specified events. The expression enforceable has been used to cover such decrees or orders also which become enforceable subsequently. 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." 14. Learned Senior Counsel appearing for the respondents submits that the judgments cited by the learned Counsel for the appellants do not apply in the circumstances of this case since parties therein, had been dispossessed without due process of law whereas in the present case, the respondent has taken possession of the premises in accordance with the execution proceedings and, therefore, the said judgments would have no application. 15. Having heard learned Counsel for the respective parties and taken note of the submissions as well as citations referred herein above, it is important at this stage to take note of the directions issued by the Executing Court and in particular dated 17.02.2020:- 16. Next important date is 19.02.2020 i.e. date on which I.A. No. 1/2020 came to be filed after service of notice on the respondents. 17. Next important date is 19.02.2020 i.e. date on which I.A. No. 1/2020 came to be filed after service of notice on the respondents. 17. The admitted fact that the matter was listed before the learned Single Judge on 24.02.2020, on further mentioning being made by the Counsel for the appellants for early hearing, the Court was pleaded to take up the matter at 2.00 P.M. of the same date. The bailiff acted in execution of the directions of the Executing Court at 11.40 A.M. on the same day. In the case at hand, there can be no doubt that mere filing of an appeal cannot and does not term as stay of further proceedings and in the case at hand, the respondent would be free to proceed with the execution of the decree. But in the case at hand, since the plaintiff through his Counsel had been given notice on 19.02.2020 that an application for stay has been sought and further a mentioning being made, matter be listed on 24.02.2020. The issue that arises for consideration is, as to whether the bailiff ought to have waited for necessary directions of the High Court which were to be heard on 24.02.2020, especially since the decree-holder himself and/or his representatives was present at the site and time of breaking open the locks of the appellants' premises. 18. What is most important herein is that vide order dated 17.02.2020, the Executing Court after taking note of the report of the bailiff that the premises were under lock and key directed the bailiff to execute the warrant of possession on or before 21.03.2020 and that too, with the assistance of the police authorities. Admittedly, the plaintiff-respondent was aware of filing of the I.A. No. 1/2020. Time for execution of the warrant of possession was till 21.03.2020. The bailiff did not seek or take any police assistance and instead on 24.02.2020 at 11.40 A.M. broke open the locks of the portion of the building being occupied by the appellants, in the absence of any police personnel and in the presence of certain witnesses including decree-holder or his representatives even though Chowkidar (guard) of the appellants was present. The bailiff did not seek or take any police assistance and instead on 24.02.2020 at 11.40 A.M. broke open the locks of the portion of the building being occupied by the appellants, in the absence of any police personnel and in the presence of certain witnesses including decree-holder or his representatives even though Chowkidar (guard) of the appellants was present. In the case at hand, this Court is of the considered view that the bailiff appears to have acted in undue haste, possibly apprehending that an interim order may be passed by the Court in the pending appeal, on the self-same day. 19. Although, this Court agrees with the learned Senior Counsel for the respondent that the appellants had taken no steps to plead for interim directions though the appeal was filed in the year 2017, he waited to move stay of execution of decree the order. The learned Counsel for the appellants submits he had filed an application for stay of the execution only after a direction was issued for execution and it become necessary for him to move a stay application. This Court finds that since the possession was taken by the plaintiff-respondent, in the purported execution of warrant of possession, the appellant had to file a further application No.2/2020 and seek for a direction to get back possession of the property of which he had been dispossessed on 24.02.2020 by the bailiff. 20. It is important to take note herein that the bailiff had time till 21.03.2020 to execute the decree and to report to the Executing Court. It clearly appears that the apprehension of any order being passed by the appellate Court, caused the bailiff to act with undue haste. 21. Therefore, this Court directs that the possession of the portion of the house occupied by the respondents be handed back to the appellant-defendants forthwith. 22. The appellants shall deposit a sum of Rs. 6,00,000/-(Rs. Six lacs only) within one week from today with the Executing Court and the Executing Court is directed to deposit the same in the fixed deposit of any Nationlised bank and amount shall not be disbursed to any party until disposal of the appeal. 23. 22. The appellants shall deposit a sum of Rs. 6,00,000/-(Rs. Six lacs only) within one week from today with the Executing Court and the Executing Court is directed to deposit the same in the fixed deposit of any Nationlised bank and amount shall not be disbursed to any party until disposal of the appeal. 23. At the time of handing over the possession to the appellants, this Court directs the Local SHO of the Police Station, Vidhyadhar Nagar, Jaipur to remain present in person and videography shall be conducted at the time of repossession of the property and a report be filed before this Court, alongwith the video within one week. 24. Learned Senior Counsel appearing for the respondents prays for three weeks time to enable the respondent to seek remedy in law. 25. I am of the considered view that while the respondent is free to challenge any order and the outcome of any challenge to this order shall obviously bind the parties and one week time is allowed. 26. I.A. Nos. 1/2020 and 2/2020 stand disposed of.