Karnataka High Court
N.C. Iyanna And Ors. vs N. Channamma And Ors. on 15 December, 1966
Equivalent citations: AIR1967KANT209, AIR1967MYS209, (1967)2MYSLJ, AIR 1967 MYSORE 209, ILR (1967) MYS 560
JUDGMENT
1. These two applications arise in the above appeal which is directed against a decree declaring that the suit trust is void. The trial Court granted a sum of Rs. 55,514 towards Court costs and I.A. No I is by the appellants for stay of the said decree I.A. No II is by the plaintiff for a direction to be issued to the tenants to pay rents to the plaintiff or deposit the same in the Court and further that the appellants should be enjoined not to operate the Bank Account standing in the name of "Neerlahalli Sharnappa Channamma Charitable Trust."
2. The tenants whose names are mentioned in paragraph 6 of the affidavit filed in support of I. A. No. II are not before the Court, being not parties and therefore no direction can be issued to them in the said circumstances, I appoint one of the parties, namely, defendant No. 1 (appellant No. 1) as receiver to make rent collections and deposit the same in the State Bank of Mysore, Bellary Branch, to the account of "Neerlahalli Sharnappa Channamma Charitable Trust". The learned Counsel for the appellants submitted that appellant No 1 is willing to act as receiver without remuneration.
3. Since the Court below has held that the suit trust is void, the appellant should not be allowed to draw amounts from the Bank account standing in the name of the suit trust without obtaining orders of the Court below for necessities binding on the estate like payment of taxes etc.
4. The application for stay of decree for costs was the subject matter of considerable argument. Sri E. S. Venkataramiah, the learned Counsel for the appellants, submitted that the appellants have no personal interest in the matter, that they are all highly responsible persons, that large amounts have been decreed against them and in the said circumstances the decree for costs should be staved. Sri V. Krishna Murthy, the learned Counsel for respondent No. 1, submitted that no grounds have been made out to depart from the normal course.
5. Sri E. S. Venkataramiah urged that Rule 5 of Order 41 of the Code makes no distinction between a decree for costs and decrees granting other reliefs and therefore stay should be granted on taking security.
6. Rule 6 of Order 41 of the Code empowers the appellate court to grant stay of execution for "sufficient cause", but no order should be made for stay of execution unless the Court is satisfied that substantial lost may result to the party applying for stay if the execution is not stayed. The circumstances urged by the learned Counsel for the appellants, in my opinion, are not sufficient to show that substantial loss would result to the appellants if the decree for costs is not stayed. In Ramanujam Chetty v. Padmanabham Pillai, AIR 1923 Mad 229, the practice of the English Courts in the matter of stay of a decree for costs is referred to. In the said case, the respondent in whose favour there was a decree for costs was adjudged an insolvent subsequent to the decree and that was urged as a ground for stay of the decree for costs. It is obvious that, if the appeal was successful, the appellant would not get back the costs from the insolvent. Even when the respondent-decree holder was an insolvent, stay of decree for costs was refused; the Court ordered that the costs may be paid on the solicitor for the respondent giving a personal undertaking to repay it in the event of the appeal being successful.
7. In the instant case, there is not even an allegation in the affidavit in support of the application that respondent No. 1 is a person of no means from whom in the event of the appeal being successful. It will not be possible to obtain restitution. Respondent No. 1 is a lady. Sri V. Krishnamurthy, the learned Counsel for respondent No. 1 submitted that his client is prepared to furnish security, before withdrawing the amount of costs. The appellants are allowed three months' time to pay the costs. Ordered accordingly.
8. Ordered accordingly.