Karnataka High Court
Mr Ajith Kumar Jain vs Mr Tharanatha Moily on 30 November, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.31096/2017(GM-CPC)
BETWEEN:
MR. AJITH KUMAR JAIN,
AGED ABOUT 56 YEARS,
S/O LATE SRI JINARAJA KAMBALI,
PADMASHREE JUICE CENTRE,
DOOR NO.8-127
NEAR OLD POLICE STATION,
PRANTHYA VILLAGE,
MOODABIDRI,
MANGALURU TALUK-575 008. ... PETITIONER
(BY SRI SANATHKUMAR SHETTY K., ADVOCATE)
AND:
MR. THARANATHA MOILY,
AGED ABOUT 51 YEARS,
S/O KESHAVA MOILY,
RESIDING AT BEHIND OLD POLICE STATION,
MOODABIDRI,
MANGALURU TALUK,
DAKSHINA KANNADA DISTRICT-570 028. ... RESPONDENT
(BY SRI P. P. HEGDE, ADVOCATE)
...
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI BY INTERFERE WITH THE
ORDER DATED 30.6.2017 PASSED ON I.A.NO.III IN
R.A.NO.157/2016 ON THE FILE OF SENIOR CIVIL JUDGE AND
CJM DAKSHINA KANNADA VIDE ANNEXURE-A.
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THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The defendant has filed the present writ petition against the order dated 30.6.2017 made on I.A.III in R.A.No.157/2016 rejecting the application filed by the appellant for permission to offer landed property as security for satisfaction of the decree.
2. The respondent, who is plaintiff filed a suit for possession and for mesne profit contending that he is the absolute owner of the suit schedule properties having purchased under the registered Sale Deed dated 13.4.2012. The defendant was the tenant under him on a monthly rent of Rs.300/- per month in respect of the suit 'B' schedule property, etc. Thereafter the defendant denied the right of the plaintiff without any valid ground and hence, he prayed for the relief as sought for.
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3. The defendant-appellant filed statement of objections denying the entire plaint averments and termination of tenancy and sought for dismissal of the suit.
4. After contest, the trial Court by the judgment and decree dated 20th September, 2016 made in O.S.No.130/2012 decreed the suit of the plaintiff holding that he is entitled for vacant possession of the 'B' schedule property and a direction was issued to the defendant to quit and surrender vacant possession of the 'B' schedule premises to the plaintiff within 90 days from the date of that order. A further direction was also issued to the defendant to pay mesne profit from the date of suit at the rate of Rs.5,000/- per month with interest at 12% per annum calculated from the 1st 4 day of every succeeding month till handing over possession of schedule 'B' premises.
5. Aggrieved by the said judgment and decree, the defendant-petitioner herein filed an appeal - R.A.No.157/2016 before the Principal Senior Civil Judge and C.J.M., Mangalore, Dakshina Kannada District along with an application under XLI Rule 5(1) r/w Section 151 of the Code of Civil Procedure for stay of operation and execution of the judgment and decree dated 20.9.2016 passed in O.S.No.130/2012. The said application was opposed by the decree holder. The Appellate Court considering the application and objections, by the order dated 16.12.2016 allowed the application filed by the present petitioner-defendant under Order XLI Rule 5(1) r/w Section 151 of the Code of Civil Procedure and stayed the operation and execution 5 of the judgment and decree dated 20th September, 2016 made in O.S.No.130/2012 on the file of the Civil Judge and JMFC., Moodbidre, until further orders subject to payment of amount towards mesne profits by the appellant. Consequently, the present petitioner-defendant filed I.A.III under Section 151 of the Code of Civil Procedure before the Lower Appellate Court to modify the order dated 16.12.2016 seeking permission to offer landed property as security to the satisfaction of the decree which may ultimately be binding upon him and to grant such other relief reiterating the averments made in the appeal memo. The same was opposed by the respondent-plaintiff.
6. The Lower Appellate Court considering the application and objections, by the impugned order 6 dated 30.6.2017 rejected I.A.III. Hence, the present writ petition is filed.
7. I have heard the learned Counsel for the parties.
8. Sri Sanath Kumar Shetty. K., learned Counsel for the petitioner contended that the impugned order passed by the Appellate Court rejecting I.A.III filed by the petitioner-defendant for modification of the order dated 16.12.2016 is erroneous and contrary to the material on record. He would further contend that when the suit is filed by the plaintiff-respondent for possession of the premises, the petitioner-defendant has denied the jural relationship of owner and tenant as had taken possession of the shop room as a tenant under one M.M. Prabhu as per the rent bond dated 1.10.1989, the Appellate Court in all fairness ought to have 7 allowed the application permitting the petitioner- defendant to furnish landed property as security for satisfaction of the decree. He would further contend that in view of provisions of Order XLI Rule 1(3) of the Code of Civil Procedure, furnishing of security in respect thereof is also permissible, but same has not been considered by the Lower Appellate Court. Therefore, the impugned order passed by Lower Appellate Court is erroneous and is liable to be quashed by the allowing the writ petition.
9. Per contra, Sri P.P. Hegde, learned Counsel for the respondent-plaintiff sought to justify the impugned order and contended that in spite of the decree passed as long back as on 20th September, 2016 directing the defendant to pay the mesne profit from the date of suit at the rate of 5,000/- per month with interest at 12% per annum till handing 8 over the possession of 'B' schedule premises; that he has also not paid a single pie. Therefore he sought to dismiss the writ petition.
10. Having heard the learned Counsel for the parties, it is not in dispute that the present respondent filed a suit for partition and separate possession and mesne profit contending that he is the owner of the properties in question. The same was disputed by the petitioner-defendant. After considering the averments in the plaint and the objections, the trial Court decreed the suit with a direction to him to quit and surrender vacant possession of 'B' schedule premises to the plaintiff within 90 days and also to pay mesne profit from the date of suit at the rate of Rs.5,000/- per month with interest at 12% per annum calculated from the 1st day of every succeeding month till handing over 9 the same. It is also not in dispute that aggrieved by the said order, the present petitioner-defendant filed R.A. No.157/2016 along with an application under Order XLI Rule 5(1) r/w Section 151 of the Code of Civil Procedure which was allowed on 16.12.2016 staying the judgment and decree of the trial Court dated 20.9.2016 passed in O.S.NO.130/2012 by the Civil Judge and JMFC., Moodbidre subject to payment of amount towards mesne profits.
11. Admittedly, the said order passed by the Lower Appellate Court was subject to the present petitioner-defendant paying the amount towards mesne profits. Consequently the present application i.e., I.A.III was filed by the petitioner herein in R.A.No.157/2016 seeking permission to offer landed property as security as contemplated under order XLI Rules 1 and 3 of the Code of Civil 10 Procedure. The Lower Appellate Court considering the entire material on record recorded a finding that the suit schedule property is still in use by the defendant-petitioner and has not been vacated; that he has also not paid any rent. Further a stay has been granted against the judgment of decree of the trial Court subject to payment of amount towards mesne profit was justifiable order by him; that there was no such law that the Court can modify its order passed in the interim application in view of the dictum of the Himachal Pradesh High Court in the case of Shivram -vs- Nuratta & Others reported in AIR 2006 HP 47. Accordingly, the application was rejected.
12. Admittedly, in the present case, the order of the Lower Appellate Court dated 16.12.2016 staying the operation and execution of judgment 11 and decree dated 20.9.2016 passed in O.S.No.130/2012 by the Civil Judge & JMFC., Moodbidre until further orders subject to payment of amount towards mesne profits is not challenged but what is challenged is only rejection of the application - I.A.III for modification. It is not in dispute that the trial Court after holding detailed enquiry has held that the plaintiff is entitled to mesne profits at the rate of Rs.5,000/- per month with interest at 12% per annum from the date of the suit till realization. Though the suit was filed in the year 2012 and now we are in the year 2017, till today the defendant-present petitioner has not paid a single pie and has not shown his bonafide.
13. The Lower Appellate Court exercising its power under Order XLI Rule 5 r/w Section 151 of the Code of Civil Procedure has stayed the judgment 12 and decree of the trial Court subject to payment of amount towards mesne profits. Except seeking modification, that discretionary order was not at all challenged. The Lower Appellate Authority has rejected I.A.III.
14. In so far as the contention of the learned Counsel for the petitioner that, under Order XLI Rule 3, the Court can exercise its power is concerned, Order XLI Rule 3 clearly depicts that where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit, the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. Therefore, the said provision clearly indicates the discretionary power given to the Appellate Court and the same has been exercised by the Lower 13 Appellate Court while passing the impugned order on 16.12.2016. Such a power cannot be held as unreasonable. The trial Court considering the present application for modification has rightly rejected and the same is in accordance with law.
15. In that view of the matter, the petitioner has not made out any ground to interfere with the discretionary order passed by the trial Court while rejecting the application for modification of its original order since the original order is not challenged before the Court. Therefore, no interference is called for in exercise of writ jurisdiction under Article 227 of the Constitution of India.
Accordingly, writ petition is dismissed.
Sd/-
Judge Nsu/-