Telangana High Court

M. Vijay Kumar vs Smt. Nayeemunnisa Begum on 19 July, 2024

Author: T. Vinod Kumar

Bench: T. Vinod Kumar

     THE HON'BLE SRI JUSTICE T. VINOD KUMAR

        CIVIL REVISION PETITION No. 263 of 2024

ORDER:

1. The present Civil Revision Petition is filed aggrieved by the

order dated 12.09.2023 in I.A. No.687 of 2023 in A.S. No.30 of

2023 passed by the Principal District and Sessions Judge cum

Family Court, Medchal-Malkajgiri, at Malkajgiri, (for short 'the

Appellate Court').

2. The facts in nutshell are that the petitioner herein had filed

O.S. No.1706 of 2012 seeking declaration, recovery of possession

along with consequential permanent injunction. The respondents

herein were defendants in the said suit. The said suit was decreed

vide order dated 13.06.2023, directing the respondents herein to

pay a sum of Rs.10,000/- per month, towards mense profits from

the date of the suit i.e., 18.09.2012 till the delivery of vacant

possession. Aggrieved by the said order, the respondents herein

filed the appeal numbered as A.S. No.30 of 2023.

3. Along with the said appeal, the respondents herein had filed

the underlying interlocutory application under Order 41 Rule 5

read with Section 151 of the Code of Civil Procedure, 1908 (for

short 'the Code') seeking for stay of operation of the decree dated

13.06.2023. The Trial Court on hearing the parties had allowed the

application subject to deposit of 25% of the decreed mense profits

into the Court within twenty days from the date of the order.

4. This Civil Revision Petition is filed aggrieved by the said

order granting stay of operation of the decree.

5. Learned Counsel for the petitioner herein contends that, the

dispute between the parties was pending before the Trial Court for

over twenty (20) years; that the respondents herein were in illegal

possession of the suit scheduled property for over ten (10) years;

and that while in illegal possession the respondent No.1 herein was

earning a rent of Rs.18,500/- every month from the respondent

No.2 herein. Thus, it is contended that the Appellate Court by

considering that the aforesaid facts along with the fact that the total

mense profits owed to the petitioner herein amounted to a sum of

Rs.13,16,334/- ought to have ordered the respondents herein to

deposit the entire arrears of mense profits in order to protect the

petitioner's interests.

6. Heard Sri. P. Raj Kiran, learned Counsel for the petitioner,

and perused the record.

7. At the outset, it is trite law that the scope of revision under

Article 227 of the Constitution of India is limited. The High Court

while entertaining its supervisory jurisdiction, cannot sit in appeal

over the order passed by the Trial Court. Interference is to be

exercised only when the impugned order suffers from patent

illegality, or manifest procedural irregularity or the Court passing

such order lacks jurisdiction. It is equally well settled that

interference in exercise of powers conferred under Article 227 of

the Constitution of India, cannot be shown merely because another

view is possible. (See: Trimbak Gangadhar Telang and Ors. Vs.

Ramchandra Ganesh Bhide and Ors 1, and Shalini Shyam Shetty

and Ors. Vs. Rajendra Shankar Patil 2).

8. It is also a settled position of law that the power of the

Appellate Court to grant stay is discretionary and the Court while

doing so is expected to impose reasonable conditions, so as to

ensure that the applicant of such stay while seeking equity does

(1977) 2 SCC 437

(2010) 8 SCC 329

equity (See: Atma Ram Properties (P) Ltd. Vs. Federal Motors

Pvt. Ltd 3).

9. That Hon'ble Supreme Court in Heera Traders Vs. Kamla

Jain and Pooja Collections Vs. Kamla Jain,4 held that the power

conferred under Order 41 Rule 5 of the Code, has to be exercised

with caution so as to ensure that neither the landlord receives a

windfall, nor the appellant is imposed with an unreasonable

amount thereby defeating the purpose of his appeal.

10. Thus, in the light of the aforesaid principles, since the Trial

Court had passed the impugned order by taking into consideration

the judgment of the Hon'ble Supreme Court in Atma Ram

Properties's case (supra) and the prevailing factual aspects, this

Court is not inclined to interfere with the impugned order directing

the respondents herein to deposit 25% of the total mense profits, at

this stage.

11. However, the Hon'ble Supreme Court in Marshall Sons &

Co. (I) Ltd. Vs. Sahi Oretans (P) Ltd. and Ors 5, while noting that

(2005) 1 SCC 705

AIR 2022 SC 1377

(1999)2SCC325

persons in wrongful possession often draw delight in delays of

proceedings, held that it was necessary to protect the judgment

creditor by passing appropriate orders to ensure that a person

holding over the property pays reasonable mense profits equivalent

to the market rent. The relevant observations are as under:

"3. From the narration of the facts, though it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Because of the delay unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also known fact that after obtaining a decree for possession of immovable property, its execution takes long time. In such a situation for protecting the interest of judgment creditor, it is necessary to pass appropriate order so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, Court may appoint Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour decree is passed and to protect the property including further alienation."

(emphasis supplied)

12. In the light of the aforesaid authoritative pronouncement,

this Court cannot overlook the fact that the litigation before the

Trial Court had taken twenty (20) years to culminate; and that the

respondents herein by virtue of the order of stay will continue to

enjoy the property and benefits arising out of it on the ground of

equity, despite being disentitled to do the same, till the disposal of

the appeal. Therefore, it is just to protect the interests of the

judgment creditor i.e., the petitioner herein, to ensure that the

respondents herein do not delay the wheels of justice.

13. Resultantly, this Civil Revision Petition is disposed of

granting liberty to the petitioner herein is to approach the Appellate