IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA W.P.No.1874/2018 (GM – CPC) BETWEEN :
GEETHA V. SHETTY W/O VITTAL SHETTY AGED ABOUT 44 YEARS, R/AT D.NO. 1-252/38 NEW SARIPALLA HOUSE, PADAVU, MANGALURU TALUK, D.K. DISTRICT - 575 005. ...PETITIONER (BY SRI S.N.BHAT, ADV.) AND :
JASON LANCY REGO S/O LATE SRI SYLVESTER REGO AGED ABOUT 33 YEARS, R/AT HOUSE NO.20-96 UMIKHAN ESTATE, KULSHEKAR, MANGALURU D.K.DISTRICT - 575 005. …RESPONDENT (BY SRI UDAYA PRAKASH MULIYA, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDERS PASSED BY THE LEARNED II ADDL. SENIOR CIVIL JUDGE AND CJM, DATED 16/12/2017 MANGALURU IN R.A.NO.9/2017 (ANNEXURE-G), ON AN APPLICATION FILED UNDER ORDER 41 RULE 5 OF CPC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has assailed the order dated 16.12.2017 passed in R.A.No.9/2017 by the learned II Addl. Senior Civil Judge & CJM, Mangalore.
2. The respondent herein has filed O.S.No.248/2014 seeking relief of mandatory injunction. The Trial Court partly decreed the suit directing the defendant to quit and surrender the vacant possession of the ‘B’ schedule property to the plaintiff within 30 days and directed to pay Rs.25/- per day as mesne profits from the date of suit till recovery of possession from the defendant.
3. The petitioner has filed an appeal challenging the judgment and decree of the Trial Court in R.A.No.9/2017. In the said proceedings an application under Order 41 Rule 5 r/w Section 151 of CPC was filed seeking an interim order of stay of the order of the Trial Court till the disposal of the appeal which came to be dismissed. Hence, this writ petition.
4. Learned counsel for the petitioner placing reliance on Order 41 Rule 3 of CPC submits that the deposited amount disputed in the appeal shall be furnished as security before the Appellate Court only where the appeal is against the decree for payment of money. Hence, the lower Appellate Court is not justified in rejecting the application on the ground that mesne profits has not been deposited by the petitioner before filing the appeal.
5. Learned counsel for the respondent referring to Order 41 Rule 5(3) of the CPC submits that no order of stay of execution shall be made under sub-Rule(1) of Rule 5 unless the Court making it is satisfied that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.
6. The said arguments of the learned counsel for the respondent cannot be countenanced for the reason that Order 41 Rule 5(3) of the CPC provides only for the security to be given by the applicant for due performance of such decree or order. But the same cannot be construed as a deposit to be made before filing an appeal challenging the judgment and decree. It is also significant to note that no order is passed by the Appellate Court invoking Order 41 Rule 5(3) of the CPC directing the applicant to deposit security. As such reliance placed on Order 41 Rule 3 of CPC by the learned counsel for the petitioner is also not applicable to the facts of the case. Moreover, the same is not invoked by the lower Appellate Court.
7. Considering the totality of the circumstances of the case, this Court deems it appropriate to modify the impugned order, passing an interim order of stay, staying the operation and execution of the judgment and decree dated 3.10.2016 passed in O.S.No.248/2014 till the disposal of the appeal subject to the petitioner depositing the mesne profits of Rs.25/- per day from the date of the suit [11.03.2014] as directed by the Trial Court in its judgment and decree dated 3.10.2016 till the date of filing of the appeal [02.01.2017] within a period of eight weeks from today. Ordered accordingly.
With the aforesaid observations and directions, writ petition stands disposed of.
Sd/- JUDGE Dvr: