Patna High Court
Narayan Sahu And Ors. vs Sri Thakurji Ramji And Ors. on 15 July, 1927
Equivalent citations: 106IND. CAS.194, AIR 1928 PATNA 49
JUDGMENT B.K. Mullick, Acting C.J. 1. This is an application for stay under somewhat peculiar circumstances. 2. A Mahant named Damodar Das who was the trustee of the properties in suit borrowed money on a mortgage from the appellant Narain Sahu. The appellant got a decree on the mortgage and took possession of the mortgaged properties on the 17th December, 1908. Next Damodar Das was ejected from the office of Mahant by a decree of the Court under Section 92 of the Code of Civil Procedure and one Rajkumar Das was installed in his place. Rajkumar then brought a suit against the appellant for a declaration that the mortgage was without necessity and for recovery of possession. His suit was dismissed. 3. Next Rajkumar was dislodged from the Mahantship on appeal and Damodar Das got back to his office. After his death is successor the respondent Ramkumar Das brings another suit on the same cause of action as Rajkumar for a declaration and for recovery of the mortgaged propertied from the appellant. 4. This time the attempt has been successful and the Subordinate Judge of Darbhanga has decreed the claim on condition that the plaintiff Ram Kirpal deposits on or before the 30th April, 1927, a sum of Rs. 11,000 odd for the benefit of the appellant. 5. The appellant has preferred an appeal to this Court and he has also applied to the Registrar for a stay of execution. The Registrar issued an interim order for stay of execution, but on the 30th June, 1927, when the matter came up for hearing before him the respondent represented that the application was premature inasmuch as he had taken no steps whatever for delivery of possession. This argument prevailed with the Registrar and he dismissed the application for stay on the ground that there was no necessity for considering it at the moment. 6. At this point the respondent adopted what appears to me to be a very questionable move. He went straightway to the Execution Court and on the 10th June put in an application for delivery of possession and obtained delivery of possession on the 13th June. 7. The appellant having been taken by surprise then hurried to this Court and made an application on the 15th June, for the hearing of his application for stay of execution on the merits and for the cancellation of the order of delivery of possession and for restitution of the property. 8. We have heard the learned Vakil for the respondents on the circumstances under which he induced the Registrar to dismiss the application for stay on the 6th June, 1927. It is quite clear that if the Registrar had had any suspicion that the respondent was going straightway to the Execution Court to make an application and to take delivery of possession he would not have dismissed the application, but would have disposed of it on its merits. There has, in my opinion, been something in the nature of an over reaching of the Court on the part of the respondent and delivery of possession cannot be allowed to stand. 9. The next question is whether there should be a stay pending the hearing of this appeal. It is unnecessary for us to express any opinion as to the merits of the appeal but having heard the learned Vakil for the respondent fully we think that on the whole it is desirable that the appellant should not be compelled to give up the property till the appeal is disposed of. He has been in possession for nearly nineteen years and to say the least the fortunes of litigation in regard to the subject-matter of the suit are uncertain. The interests of the parties will be best served by directing that the order for delivery of possession be set aside and possession be re-delivered to the appellant upon his depositing on or before the 15th August next the sum of Rs. 6,100 as security for the mesne profits of the property pending the hearing of the appeal. The respondent will be permitted to withdraw at the end of each year a sum of Rs. 1,500 on account of the mesne profits which have been accrued during the year, on giving security of the same to the satisfaction of the Execution Court. 10. With regard to the sum of Rs. 11,000 odd already deposited by the respondent under the orders of the Subordinate Judge we direct that the respondent be permitted to withdraw this sum on condition that in the event of the appeal being dismissed he will within four months from the judgment of the Appeal Court bring back the money into Court. 11. The application is, therefore, allowed with costs. Hearing fee two gold mohurs. Wort, J.
12. I agree.