Orissa High Court
M/S. P.K. Enterprises And Another vs Suresh Chandra Panda And Others on 19 October, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 779 OF 2022
M/s. P.K. Enterprises and another .... Petitioners
Mr. Bibekananda Bhuyan, Advocate
-versus-
Suresh Chandra Panda and others .... Opp. Parties
Mr. Prasanna Kumar Panda, Advocate
(For Caveator/Opp. Party No.1)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 19.10.2022
3. 1. This matter is taken up through hybrid mode.
2. The CMP has been filed assailing the order dated 22nd
July, 2022 (Annexure-4) passed by learned 1st Additional
District Judge, Cuttack in R.F.A. No.18 of 2020, whereby
entertaining an application under Order XLI Rule 5 C.P.C., the
Appellate Court directed to stay further proceeding in Execution
Case No. 20 of 2020 pending before learned 3rd Additional Civil
Judge (Sr. Division), Cuttack subject to condition that the
Petitioner shall deposit a cash of Rs.7,00,000/- and property
security of Rs.7,98,375/- before learned Appellate Court with a
further condition to pay Rs.15,000/- per month to the D.Hr-
Opposite Party No.1 towards damages from the month of July,
2022 onwards in respect of the suit land till disposal of the
appeal.
3. Mr. Bhuyan, learned counsel for the Petitioners assailing
the sustainability of the impugned order under Annexure-4
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submits that C.S. No. 586 of 2015 was filed by the Opposite
Party No.1 for eviction of the Petitioners from Schedule-A
property, realization of house rent and damages @ Rs.500/- per
day with effect from 1st April, 2010 till the Petitioners vacate the
suit premises along with cost. The present Petitioners being the
Defendant Nos.1 and 2 filed counter-claim praying inter alia to
direct the Plaintiff-Opposite Party No.1 to pay Rs.1,76,000/- and
for damages @12% till its payment along with cost. C.S.
No.124 of 2015 was filed by the present Petitioners for
declaration of right over the Schedule-A property and for
permanent injunction. The Opposite Party No.1 filed counter-
claim praying inter alia to declare that the sale deed dated 26th
November, 2011 executed in favour of the present Petitioners
over Schedule-B land is null and void and for permanent
injunction. C.S. No.586 of 2015 and counter claim filed in C.S.
No.124 of 2015 filed by the Opposite Party No.1 were allowed
directing eviction of the present Petitioners from Schedule-A
land and to deliver vacant of possession of the same to Suresh
Chandra Panda-Opposite Party No.1 within three months. The
Defendants in C.S. No.586 of 2015 were held jointly or
separately, liable to pay balance arrear rent of Rs.1,63,000/- for
pendente lite and future interest @ 5% per annum to the
Opposite Party No.1. It was further directed that the present
Petitioners are also liable to pay damages @ Rs.500/- per day
with effect from 1st April, 2015 till they vacate the Schedule-A
premises. Counter claim filed in C.S. No.586 of 2015 as well as
// 3 //
C.S. No.124 of 2015 filed by the present Petitioners were
dismissed. Assailing the judgment and decree passed in C.S.
No. 586 of 2015, the Petitioners have preferred R.F.A. No.18 of
2020, which is pending in the Court of learned 1st Additional
District Judge, Cuttack. During pendency of the appeal the
Opposite Party No.1 filed Execution Case No.20 of 2020.
Consequently the Petitioners filed an application for stay of
execution proceeding in R.F.A. No.18 of 2020. While
adjudicating the petition for stay of execution proceeding, the
impugned order under Annexure-4 has been passed, which is
under challenge in this CMP.
4. Mr. Bhuyan, learned counsel for the Petitioners submits
that Order XLI Rule 5(3) C.P.C. makes it clear that while
passing an order of stay of execution proceeding, the Court has
to see that adequate security is provided by the Applicant for due
performance of the decree or order. Order XLI Rule 5(3) C.P.C.
reads as under:
"5. Stay by Appellate Court.-
XXX XXX XXX XXX
3. No order for stay of execution shall be made
under sub-rule (1) or sub rule (2) unless the Court
making it is satisfied-
(a) that substantial loss may result to the
party applying for stay of execution unless the
order is made;
(b) that the application has been made
without unreasonable delay; and
(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."
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5. He, therefore, submits that the Court while passing an
order of stay of execution of the decree has to satisfy itself that
the J.Dr has furnished adequate security for due performance of
the decree. It cannot act as an executing Court in directing the
J.Dr to comply any direction in the judgment decree. He, further
submits that learned appellate Court while adjudicating the
petition has referred to the ratio decided in the cases of Iftikhar
Iman Mallick @ Iftikhar Imam -v- Mst. Mehroom Nisha,
reported in 2014 (II) CLR 750 and Ananta Charan Pothal -v-
Smt. Guramani Pothal and others, reported in 2013 (II) OLR
919, wherein this Court has held that learned appellate Court can
direct deposit of the decretal amount for the purpose of grant of
stay of execution proceeding as contemplated under Order XLI
Rule 5(3) C.P.C.. But, the Court may not insist for cash deposit
only, partly cash deposit and partly property security is sufficient
to meet the purpose of the provision. He, therefore, submits that
direction to pay Rs.15,000/- per month to the D.Hr-Opposite
Party No.1 is contrary to the object and tenor of the provision for
stay of the execution proceeding. If such an amount is paid to
the D.Hr-Opposite Party No.1, then it would be very difficult on
the part of the Petitioners to recover the same, in the event they
succeed in the appeal. He further submits that by directing
payment to damages to the Opposite Party No.1, the Court has
impliedly allowed the execution case in part, which is not
permissible in law. He, however, submits that the Petitioners
have already deposited Rs.7,00,000/- in cash and has furnished
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property security for rest of the amount. They have also
deposited a sum of Rs.60,000/- before learned appellate Court
towards damages from July to end of October, 2022. He,
therefore, prays for setting aside the impugned order under
Annexure-4 to the extent of directing payment of Rs.15,000/- per
month to the D.Hr-Opposite Party No.1 and to modify the
impugned order by directing the J.Drs-Petitioners to deposit the
same before learned appellate Court.
6. Mr. Panda, learned counsel for the Opposite Party No.1
vehemently objects to the same and contends that the Petitioners
had earlier moved this Court in CMP No.948 of 2022 assailing
the order dated 23rd September, 2022 passed by learned District
Judge, Cuttack in Civil Revision Petition No.06 of 2022,
whereby an application for stay of Execution Case No.20 of
2020 was rejected. While disposing of the CMP, this Court vide
order dated 28th September, 2022 directed as under:
"6. Accordingly, this CMP is disposed of with a
direction that in the event the Petitioners, without
prejudice to their case, comply with the order dated 22nd
July, 2022 passed by learned 1st Additional District
Judge, Cuttack in R.F.A. No.18 of 2020, further
proceeding in Execution Case No.20 of 2020 shall
remain stayed, which shall be subject to any order to be
passed in CMP No.779 of 2022.
7. Since this order is passed without serving any
notice on the Opposite Party, he is at liberty to move this
Court for variation of this order, if he feels aggrieved."
Petitioners have not complied with the said order till date
as they instead of paying Rs.15,000/- per month towards
damages to the Opposite Party No.1, have only deposited a sum
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of Rs.60,000/- before learned appellate Court, which was not the
direction of either learned appellate Court or this Court. Thus,
the Petitioners have not come to the Court with clean hand. As
such, the CMP is liable to be dismissed on that score alone.
7. He further submits that the Opposite Party No.1 being the
D.Hr, should not be prevented from enjoying the fruit of the
decree. By depositing the damages before learned appellate
Court, the J.Drs have put the D.Hr to serious prejudice as the
Opposite Party No.1 is deprived of getting the aforesaid amount
from which he earns his livelihood. He also refers to Section
108 of the Transfer of Property Act, 1882 (for short 'the Act')
and submits that in view of the 108(l) of the Act, the lessee is
bound to pay or tender at the proper time and place the premium
or rent to the lesser or his agent in his behalf. Thus, the
Petitioners are liable to pay the damages to the Opposite Party
No.1. He further submits that in addition to the power conferred
under Order XLI Rule 5(3) C.P.C., the Court can exercise
discretionary power under Section 151 C.P.C. to direct payment
of damages to the D.Hr, which the Court has done. Hence, the
impugned order under Annexure-4 warrants no interference.
8. Heard learned counsel for the parties. Perused the
impugned order under Annexure-4, case laws as well as
provisions of law relied upon by learned counsel for the parties.
9. The factual aspect of the case is not disputed. The
question remains to be adjudicated in this CMP is whether
learned appellate Court is justified in directing the Petitioners to
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pay Rs.15,000/- per month to the Opposite Party No.1 as a
condition precedent to stay further proceeding in Execution Case
No.20 of 2020. As would be apparent from the provision of
Order XLI Rule 5(3) C.P.C., along with other requirement as
provided under clauses (a) and (b) of Sub-rule 3, the Court has
the discretion under clause (c) of Sub-rule 3 to stay execution of
the decree subject to condition that the security has been given
by the applicant (Petitioners herein) for the due performance of
such decree or order as may ultimately binding upon him. The
provisions no where provides for payment of the amount to the
D.Hr as a condition precedent for stay of execution. Further the
case laws in Iftikhar Iman Mallick @ Iftikhar Imam and
Ananta Charan Pothal (supra), this Court has laid down the law
that the Court while passing an order of stay of execution can
direct to deposit of decretal amount for the purpose of stay of
execution proceeding as contemplated under Order XLI Rule
5(3) C.P.C. But the Court may not insist upon cash deposit only.
It can partly direct for cash deposit and partly property security
depending upon the facts and circumstances of the case.
Payment of damages is a money decree and the provision of
Order XLI Rule 5(3) C.P.C. is squarely applicable to the instant
case. The direction of learned appellate Court to pay the amount
to the D.Hr-Opposite Party No.1 amounts to execution of decree
in part, which is not the intent and object of the provision under
Order XLI Rule 5(3) C.P.C. The provision is made to stay
execution by securing performance of the decree and not to
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execute a part of the decree itself. The case laws relied upon by
learned appellate Court also nowhere makes any provision for
payment of amount to the D.Hr. Thus, direction to pay damages
@ Rs.15,000/- per month to the Opposite Party No.1 (D.Hr) is
not sustainable in the eyes of law in the facts and circumstances
of the case.
9.1. Section 108(l) of the Act is not applicable to the instant
case as said provision relates to payment of rent and not
damages. Further in view of the specific provisions under Order
XLI Rule 5 C.P.C., the Court cannot exercise inherent power
under Section 151 C.P.C. In the instant case, there is no material
on record to show that direction to pay damages has been made
by learned appellate Court in exercise of power under Section
151 C.P.C. Thus, the submission of Mr. Panda, learned counsel
for the Opposite Party No.1 is not sustainable to this extent.
9.2. It appears that this Court while disposing of CMP No.
948 of 2022 directed the Petitioners to comply with the order
passed by learned appellate Court vide Annexure-4 as a
condition precedent for stay of Execution Case No. 20 of 2020
without prejudice to their case, which shall be subject to the
order to be passed in this CMP. But, the Petitioners instead of
paying Rs.15,000/- per month to the Opposite Party No.1,
deposited Rs.60,000/- before learned appellate Court. Thus, the
Opposite Party No.1 is entitled to receive the said amount in
terms of the order under Annexure-4, which shall be subject to
the order to be passed in R.F.A. No. 18 of 2020.
// 9 //
10. In view of the above, the impugned order under
Annexure-4 directing payment of Rs.15,000/- per month to the
D.Hr-Opposite Party No.1 is not sustainable and is accordingly
set aside. Accordingly, this Court modifying the impugned order
under Annexure-4 directs that the Petitioners shall go on
depositing Rs.15,000/- per month before learned appellate Court
till disposal of the appeal as a condition precedent for stay of
Execution Case No.20 of 2020, the rest part of the order stands
confirmed. Rs.60,000/- deposited by the Petitioners shall be
released in favour of the Opposite Party No.1 by making proper
application to that effect.
11. Since the parties to the appeal have already entered
appearance, learned appellate Court shall make an endeavour to
dispose of the appeal as expeditiously as possible preferably
within a period of six months giving opportunity of hearing to
the parties concerned, if there is no legal impediment.
12. With the aforesaid modification in the impugned order
under Annexure-4, this CMP is disposed of.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Judge
ms
