Delhi High Court
Mohinder Kaur & Ors. vs Sukhdevi Jain & Ors. on 2 August, 2017
$~66.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRP No.168/2017, CM No.27592/2017 (for condonation of 47 days
delay in filing) and CM No.27594/2017 (for condonation of 150 days
delay in re-filing).
MOHINDER KAUR & ORS. ..... Petitioners
Through: Mr. M.B. Harikant, Adv.
versus
SUKHDEVI JAIN & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 02.08.2017
CM No.27593/2017 (for exemption).
1. Allowed, subject to just exceptions.
2. The application stands disposed of.
CRP No.168/2017, CM No.27592/2017 (for condonation of 47 days delay
in filing) and CM No.27594/2017 (for condonation of 150 days delay in
re-filing).
3. This Revision Petition under Section 115 of the Code of Civil
Procedure, 1908 (CPC) has been listed on urgent mentioning and subject to
office objection as to the maintainability of the Revision Petition under
Section 115 of the CPC.
4. The counsel for the petitioners has been heard.
5. The Revision Petition impugns the orders (dated 29th September, 2016
and 1st December, 2016 in RCA No.11/16 (61216/16) of the Court of
Additional District Judge-01 (West), Tis Hazari Courts, Delhi) issuing
notice of the appeal preferred by the petitioners to the respondents /
plaintiffs subject to deposit by the petitioners / defendants of decretal
amount in the form of FDR and dismissing the application of the petitioners
/ defendants for re-call of the said order.
6. The only argument of the counsel for the petitioners / defendants is
that "the petitioners / defendants though are not willing to deposit the
decretal amount but are willing to deposit the ad valorem court fees on the
decretal amount".
7. The impugned order dated 29th September, 2016 is as under:-
"29.09.2016
Present: Appellant no.3 with counsel,
Sh. M.B. Harikant
Subject to deposit of decreetal amount in
form of FDR within 15 days, notice be issued to
respondent on filing of PF & RC for 01.12.2016."
8. A perusal of the paper book shows that the suit filed by the
respondents / plaintiffs against the petitioners / defendants was decreed on
22nd August, 2016 for the relief of recovery of possession of immoveable
property for recovery of Rs.55,900/- and for recovery of pendente lite and
future mesne profits @ Rs.4,300/- per month, with interest; the petitioners /
defendants preferred the appeal aforesaid and in which the orders aforesaid
have been made.
9. The decree against the petitioners / defendants also being a money
decree and a decree for recovery of possession and stay of which cannot be
granted without securing the decretal amount and without ensuring that for
the period for which the petitioners / defendants, inspite of the decree,
remain in possession, the petitioners / defendants compensate the
respondents / plaintiffs, the learned Additional District Judge was correct in
directing deposit.
10. However the error which has been committed by the learned
Additional District is, in making the issuance of notice of the appeal subject
to said deposit and which is impermissible in accordance with the judgment
of the Supreme Court in Kayamuddin Shamsuddin Khan Vs. State Bank of
India (1998) 8 SCC 676 and in Devi Theatre Vs. Vishwanath Raju (2004) 7
SCC 337. The deposit can only be a condition for grant of stay of execution
and not a condition for issuance of notice of first appeal.
11. For issuing such clarification and modification, need to issue notice to
the respondents / plaintiffs is not felt.
12. The orders impugned are thus modified by providing that if the
petitioners / defendants do not deposit the decretal amount and do not
continue to deposit the mesne profits as awarded during the pendency of the
appeal, there shall be no stay of execution and the respondents / plaintiffs
shall be entitled to execute the decree. However, non-deposit to not come in
the way of issuance of notice of the appeal and the appeal being considered
on merits.
The petition is disposed of.
No costs.
RAJIV SAHAI ENDLAW, J
AUGUST 02, 2017
„pp‟..
