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Showing contexts for: Order XLI Rule 5 security in Muzaffarpur Club vs Smt. Usha Sinha on 26 February, 2024Matching Fragments
7. The learned counsels for the appellants placed reliance on several decisions, such as (i) (1982) 3 SCC page 484, (ii) 2001 (2) PLJR page 268, (iii) 2017 (2) PLJR page 54 & (iv) a decision of Hon'ble Supreme Court dated 30.09.2013 passed in civil Appeal No. 8775 of 2013, and submitted that if the appeal is admitted, an order of stay must be passed, otherwise the appellant would suffer irreparable loss.
8. On the other hand, the learned counsel for the respondents submitted that the suit of the plaintiffs/respondents for eviction was decreed by the trial court and the first appeal was also finally dismissed, against which the present second appeal has been filed. The respondents have specifically Patna High Court SA No.338 of 2021(12) dt.26-02-2024 mentioned in their counter affidavit and supplementary counter affidavit that there is relationship of landlord and tenant and the relationship of landlord and tenant was found by the courts below which has become concurrent findings of facts, and not liable to be interfered with in the second appeal. The further submission is that the appellants in paragraph-11 of their interlocutory application have mentioned that Muzaffarpur Club purchased the suit land from Mahant Raghunath Prasad by sale deed dated 26.02.1896 (Exhibit 10/B) and after execution of the sale deed, they did not remain as permanent settlee, rather they became the owner of the suit land, but this plea of the respondents was not believed by the courts below. The learned counsel further submitted that the House Controller under the provisions of the B.B.C.Act has no jurisdiction to pass a decree of eviction, as such, the order of the House Controller in House Control Case No. 02 of 1955 is without jurisdiction and it is a settled principle of law that an order without jurisdiction is a nullity and cannot operate as res judicata in the present case. The learned counsel further submitted that so far as the order passed by this Court in Civil Misc. No.1370 of 2016 is concerned, that has no relevance at the present second appellate stage. That order was operative only during the pendency of the Patna High Court SA No.338 of 2021(12) dt.26-02-2024 appeal of Title Appeal No.57 of 2015 and after dismissal of that appeal that order has lost its relevance. The learned counsel for the respondents submitted that though this Court held in 2022 (3) BLJ page 393 that in an eviction suit, there is no mandatory requirement of furnishing security and an undertaking to vacate the premises is enough in terms of Order XLI Rule 5(3) (c) of the code. But in the present case, the furnishing of security is essential because the respondents have become successful in the case not only from the trial court but also from the first appellate court. The concurrent findings of the courts below are in favour of the respondents. He submitted further that the furnishing of security is also essential because in case the respondents become successful in second appeal also, it would be impossible for them to recover the damages as well as the arrears of rent from the appellant, Muzaffarpur Club. They submitted that the interlocutory application for stay of the execution of the decree should either be rejected or if it is granted, a security in terms of Order XLI Rule 5(3) (c) must be taken from the appellants. The learned counsel has submitted further that in the decisions reported in (2009) 9 SCC 772, AIR 2022 SC 1377 and (2005) 1 SCC 705, the Hon'ble Supreme Court held that as a security the rent at immediate market rate should be furnished. He submitted Patna High Court SA No.338 of 2021(12) dt.26-02-2024 further that these decisions were not placed before this Bench, while hearing the case reported in 2022 (3) BLJ page 393.
11. Considering the above-mentioned facts and circumstances of the case, I am of the view that for the ends of justice, the further proceedings of Execution Case No.02 of 2015 should be stayed till disposal of this second appeal.
12. The learned counsel for the respondents submitted that if the stay is granted, the appellants should furnish the security for complying the decree in terms of Order XLI Rule 5(3)(c) of the Code. The Order XLI Rule 5(3)(c) of the Code is extracted hereinbelow:-
"5(3)(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him"
13. From bare perusal of this provision, it shows that this Court is empowered to require a security from the applicant for due compliance of the decree.
14. This Court had an occasion to consider this fact in case of Shri Madhurendra Kumar Singh & another, reported in 2022(3) BLJ page 393, in which it was observed that it is the discretion of the Court to require the appellants to file security. Patna High Court SA No.338 of 2021(12) dt.26-02-2024 This Court, while deciding the case of Shri Madhurendra Kumar Singh (supra), relied upon the decision of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd., reported in 2005(1) PLJR page 320. In the case of Madhurendra Kumar Singh (supra), the applicant had filed an undertaking to obey the decree and this Court found that the undertaking as sufficient security for the purposes of Order XLI Rule 5(3)(c) of the Code. But, in the present case, there is not only prayer for eviction of the appellants has been claimed, but also there is a prayer for recovery of arrears of rent as well as compensation of the damages caused to the premises by the appellants. At this juncture, it is impossible to predict the fate of the case, but it is a fact that the respondents have become successful from the trial court as well as the first appellate court. The concurrent findings of the courts below are in their favour. In case, they become successful in this appeal, it would be impossible for them to recover the damages and arrears of rent from the Club in question.