Rajappan Pillai v. Chandrasekhar Pillai and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 1ST DAY OF NOVEMBER 2017/10TH KARTHIKA, 1939** ## **OP(C).No. 1951 of 2017 (O)** ## **---------------------------** **AGAINST THE ORDER I.A. NO. 291/17 IN AS 15/2017 OF SUB COURT, PALA DATED 12.04.2017** **-------------** ## **PETITIONER/1ST COUNTER PETITIONER:** **----------------------------------------------------------** **RAJAPPAN PILLAI, AGED 71 YEARS, S/O. KRISHNA PILLAI, VELAMPARAMBIL HOUSE, ERUMELI KARA, ERUMELI SOUTH VILLAGE, KANJIRAPPALLY TALUK.** **BY ADVS.SRI.LIJI.J.VADAKEDOM SMT.REXY ELIZABETH THOMAS SRI.RAJEEV JYOTHISH GEORGE SRI.TOM E. JACOB** ## **RESPONDENT(S)/PETITIONER AND COUNTER PETITIONER 2 TO 8:** **----------------------------------------------------------------------------------------------** **1. CHANDRASEKHARA PILLAI, AGED 67 YEARS, S/O.KRISHNA PILLAI, VELAMPARAMBIL HOUSE, ERUMELI KARA, ERUMELI SOUTH VILLAGE, KANJIRAPPALLY TALUK. 686 509** **2. V.K.PARAMESWARAN PILLAI, AGED 81 YEARS, S/O. KRISHNA PILLAI, VELAMPARAMBIL HOUSE, ERUMELI KARA, ERUMELI SOUTH VILLAGE, KANJIRAPPALLY TALUK (DIED). 686 509** **3. GOURIKUTTIYAMMA AGED 75 YEARS, D/O. KRISHNA PILLAI, KOLLAMTHUNDIYIL (MULACKAL) HOUSE, NEELIPLAVU P.O., CHITTAR VILLAGE, PATHANAMTHITTA DISTRICT. 689 663** **4. SARADHAMMA,** - **AGED 80 YEARS, W/O. PARAMESWARA PILLAI, PRATHIBHAYIL, CHETTIKULANGARA P.O., KANNAMANGALAM NORTH KARA, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. 690 106** ## **OP(C).No. 1951 of 2017 (O)** ## **-------------------------------------** **5. P.K.KRISHNAKUMAR AGED 54 YEARS, S/O. SARADHAMMA, PRATHIBHAYIL, CHETTIKULANGARA P.O., KANNAMANGALAM NORTH KARA, KANNAMANGALAM VILLAGE, MAVELIKKARA TLAUK, ALAPPUZHA DISTRICT. 690 106** **6. P.JAYACHANDRAN, AGED 50 YEARS, B/O. KRISHNAKUMAR, PRATHIBHAYIL, CHETTIKULANGARA P.O., KANNAMANGLAAM NORTH KARA, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. 690 106** **7. P.PREETHA, AGED 45 YEARS, SISTER OF P.JAYACHANDRAN, PRATHIBHAYIL, CHETTIKULANGARA P.O., KANNAMANGALAM NORTH KARA, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. 690 106** **8. P.PRATHIBHA, AGED 45 YEARS, SISTER OF P PREETHA, PRATHIBHAYIL, CHETTIKULANGARA P.O., KANNAMANGALAM NORTH KARA, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. 690 106** ## **R1 BY ADV. SRI.M.NARENDRA KUMAR** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** **OP(C).No. 1951 of 2017 (O) ---------------------------** ## **APPENDIX** ## **------------------** ## **PETITIONER(S)' EXHIBITS -------------------------------------** - **EXHIBIT P1 THE COPY OF THE JUDGMENT DATED 27.2.2017 IN OS NO. 154/2008 BEFORE THE MUNSIFF'S COURT, KANJIRAPPALLY.** - **EXHIBIT P2 THE COPY OF THE MEMORANDUM OF APPEAL IN A.S NO. 15/17 BEFORE THE SUB COURT, PALA.** - **EXHIBIT P3 THE COPY OF IA NO. 291/2017 IN A.S NO. 15/17 SUBMITTED BY THE 1ST RESPONDENT HEREIN.** - **EXHIBIT P4 THE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER HEREIN TO IA NO. 291/2017 IN AS NO. 15/17 BEFORE THE SUB COURT, PALA.** - **EXHIBIT P5 THE COPY OF THE ORDER DATED 12.4.2017 IN IA NO. 291/2017 IN AS NO. 15/17 BEFORE THE SUB COURT, PALA.** ## **RESPONDENT(S)' EXHIBITS NIL** **---------------------------------------** **/TRUE COPY/** **PA TO JUDGE** **sdr/-** ## **ANIL K. NARENDRAN, J.** ## **----------------------------------------------O.P(C) No.1951 of 2017 -----------------------------------------------** Dated this the 1[st] day of November, 2017 ## **J U D G M E N T** The petitioner, who is the first plaintiff in O.S.No.154/2008 on the file of the Munsiff's Court, Kanjirappally is before this Court in this Original Petition filed under Article 227 of the Constitution of India seeking an order to set aside Ext.P5 order dated 12.4.2017 of the Sub Court, Pala in I.A.No.291/2017 in A.S.No.15/2017. 2. On 27.6.2017, this Court issued notice on admission to the 1[st] respondent, who is the appellant in A.S.No.15/2017 and the defendant in O.S.No.154/2008. 3. A.S.No.15/2017 filed by the first respondent/defendant before the Sub Court, Pala arises out of the judgment and decree dated 27.2.2017 of the Munsiff's Court, Kanjirappally in O.S.No.154/2008, a suit filed by the petitioner/first plaintiff along with respondents 2 to 4 herein, seeking recovery of possession of plaint schedule item No.2 building, fixation of boundary, O.P(C) No.1951 of 2017 :-2-: injunction and use and occupation charges for the said building. The trial court decreed the suit with cost, by Ext.P1 judgment. Challenging the same, the defendant filed Ext.P2 appeal, i.e., A.S.No.15/2017 before the Sub Court, Pala. The said appeal was accompanied by Ext.P3 interlocutory application, i.e., I.A.No.291/2017, an application filed under Order XLI, Rule 5 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') seeking an order of stay of the operation of the decree in O.S.No.154/2008. The first plaintiff filed Ext.P4 counter affidavit to I.A.No.291/2017. 4. The lower appellate court allowed I.A.No.291/2017 by Ext.P6 order, thereby granting a stay of the operation of the decree in O.S.No.154/2008 till the disposal of the appeal. In the said order, the lower appellate court held that, the condition in Order XLI, Rule 5 of the Code that a decree for payment of money can be stayed only on condition that the applicant shall furnish security for the due performance of such decree is only directory and not mandatory in nature, in view of the decision of this Court O.P(C) No.1951 of 2017 :-3-: in **State of Kerala v. Kuruvilla (2004 (1) KLT 996)** . The lower appellate court has also held that, the main relief sought for in the suit is recovery of possession of the property in dispute and the relief for loss of profit is only ancillary; hence, the appellant need not be directed to furnish security for any portion of the decree under challenge as a pre-condition for granting a stay of the decree. 5. Heard the learned counsel for the petitioner/first respondent/first plaintiff and also the learned counsel for the first respondent/appellant/defendant. 6. The sole issue that arises for consideration in this Original Petition is as to the legality or otherwise of Ext.P5 order of the Sub Court, Pala in I.A.No.291/2017 in A.S.No.15/2017. 7. Sub-rule (3) of Rule 1 of Order XLI of the Code provides that, where the appeal is against a decree for payment of money, 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 court may think fit. As per O.P(C) No.1951 of 2017 :-4-: sub-rule (1) of Rule 5, the appellate court may for sufficient cause order stay of execution of the decree. However, going by clause (c) of sub-rule (3) of Rule 5, no order of stay of execution shall be made under sub-rule (1) of Rule 5 unless the appellate court is satisfied that security has been given by the applicant for the due performance of the decree or order as may ultimately be binding upon him. Going by sub-rule (5) of Rule 5, notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in subrule (3) of Rule 1, the court shall not make an order staying the execution of the decree. The legislative history of incorporation of sub-rule (3) of Rule 1 and sub-rule (5) of Rule 5 of Order XLI in the Code makes it amply clear that the intention of the legislature while incorporating sub-rule (3) of Rule 1 of Order XLI of the Code was not to make the requirement of deposit or furnishing security of disputed decretal amount a ground for rejection of appeal. On the other hand, a less grave consequence for non-compliance of such condition, was envisaged, namely, to disentitle the appellant O.P(C) No.1951 of 2017 :-5-: to pray for stay of execution of the decree as provided in sub-rule (5) of Rule 5 of Order XLI of the Code. 8. In **Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai and Co. [(2005) 4 SCC 1]** the Apex Court held that, Order XLI, Rule 1(3) of the Code of Civil Procedure, 1908 provides that in an appeal against a decree for payment of amount the appellant shall, within the time permitted by the appellate court, deposit the amount disputed in the appeal or furnish such security in respect thereof as the court may think fit. Under Order XLI, Rule 5(5), a deposit or security, as above said, is a condition precedent for an order by the appellate court staying the execution of the decree. A bare reading of the two provisions referred to hereinabove, shows a discretion having been conferred on the appellate court to direct either deposit of the amount disputed in the appeal or to permit such security in respect thereof being furnished as the appellate court may think fit. Needless to say that the discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a O.P(C) No.1951 of 2017 :-6-: given case. Ordinarily, execution of a money decree is not stayed inasmuch as satisfaction of money decree does not amount to irreparable injury and in the event of the appeal being allowed, the remedy of restitution is always available to the successful party. Still the power is there, of course a discretionary power, and is meant to be exercised in appropriate cases. 9. In **M/s. Malwa Strips Pvt. Ltd. v. M/s. Jyoti Ltd. [(2009) 2 SCC 426]** the Apex Court held that, in terms of subrule (5) of Rule 5 of Order XLI of the Code of Civil Procedure, 1908, the court shall not make an order staying the execution of the decree notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of Rule 1. The Apex Court held further that, even if the said provision is not mandatory, the purpose for which such a provision has been inserted should be taken into consideration. An exceptional case has to be made out for stay of execution of a money decree. The Parliamentary intent should have been given effect to. The High Court has not said that O.P(C) No.1951 of 2017 :-7-: any exceptional case has been made out. It did not arrive at the conclusion that it would cause undue hardship to the respondent if the ordinary rule to direct payment of the decretal amount or a part of it and/or directly through the judgment debtor to secure the payment of the decretal amount is granted. A strong case should be made out for passing an order of stay of execution of the decree in its entirety. 10. The decision of Division Bench of this Court in **State of Kerala v. Kuruvilla (2004 (1) KLT 996)** was in the context of Rule 8A of Order XXVII of the Code, which provides that no such security as is mentioned in Rules 5 and 6 of Order XLI of the Code shall be required from the Government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity. See: **Kanpur Jal Sansthan v. Bapu Constructions [(2015) 5 SCC 267]** 11. Viewed in the light of the law laid down in the decision referred to supra, the reasoning of the lower appellate court in O.P(C) No.1951 of 2017 :-8-: Ext.P5 order in I.A.No.291/2017 in A.S.No.15/2017 cannot be sustained in law. In the result, this Original Petition is disposed of setting aside Ext.P5 order passed by the Sub Court, Pala in I.A. No.291/2017 in A.S.No.15/2017 and the said court is directed to reconsider the said interlocutory application, in the light of the law laid down in the decision referred to supra, and pass appropriate orders, as expeditiously as possible, at any rate within a period of one month from the date of production of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** //True Copy// P.A to Judge ab