Maheshwari vs Kashinath Maheshwari
2022 Latest Caselaw 960 UK

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      28.03.2022                        SA No.37 of 2018
                                        Hon'ble Alok Kumar Verma, J.

This Second Appeal has been filed against the judgment and decree dated 30.03.2018, passed by the learned Ist Additional District Judge, Haridwar in Civil Appeal No.56 of 2015,"Pradeep Maheshwari vs. Kashinath Maheshwari and Others" whereby, the learned First Appellate Court dismissed the first appeal and directed the appellant- plaintiff to handover the peaceful vacant possession of the property-in-question along with Rs.100/- per day as compensation to be paid to the respondent/defendant no.2.

Heard Mr. Aditya Singh, learned counsel for the appellant, Mr. Piyush Garg, learned counsel with Mr. Nikhil Singhal, learned counsel for the respondent no.2 and Mr. Tapan Singh, learned counsel for the respondent nos. 3 to 5.

On 02.05.2018, the Co-ordinate Bench had directed the parties to maintain status quo qua nature and possession of the property in dispute till the decision of the appeal.

Sub-rule (5) of Rule 5 of Order XLI CPC, as amended by Allahabad High Court reads as follows:-

"Notwithstanding anything contained in the foregoing sub-rules where the appeal is against a decree for payment of money, the Appellate Court shall not make an order staying the execution of the decree, unless the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Appellate Court may think fit."

It is admitted fact that the appellant has not deposited the amount (Rs.100/- per day) or furnished any security in respect thereof.

During the arguments, the learned counsel for the appellants submitted that the said order of status quo dated 02.05.2018 may be modified to the extent that the parties shall maintain status quo qua nature and possession of the property in dispute till the decision of the appeal, however, the decreetal amount (Rs.100/- per day) is not stayed.

Mr. Aditya Singh, the learned counsel for the appellant further submitted that he may be allowed to deposit the said decreetal amount before this Court and requested two months time to deposit the said amount. He further submitted that the decreetal amount shall be deposited in the interest bearing scheme, as directed by the learned First Appellate Court on 30.03.2018.

The learned counsel for the respondents have no objection.

The said prayer is allowed. Post this case on 05.05.2022 for final hearing. Till then, the effect and operation of the impugned judgment and decree dated 30.03.2018 is stayed.

(Alok Kumar Verma, J.) 28.03.2022

Neha