Rajaram Prasad Gupta
& ANR. Vs. Ramchandra Prasad & Ors. [2008] INSC 1364 (13 August 2008)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO.5019 OF 2008 (Arising out of S.L.P. (C) No.8678 of
2004) Rajaram Prasad Gupta and Anr. ...Appellant(s) Versus Ramchandra Prasad
and Ors. ...Respondent(s) O R D E R Heard learned counsel for the parties.
Leave granted.
The Trial Court
decreed the suit for declaration of title and recovery of possession. Against
the said decree, when the appeal was preferred before the High Court, prayer
for stay of further proceeding in the execution case was refused.
Hence, this appeal by
special leave.
Undisputedly, the
suit property is a residential house in which the appellants are residing. It
is well settled that in cases where the subject of suit is residential premises
and the judgement-debtor is residing in it, prayer for stay is ordinarily
granted. Of course, for special reasons, it may be refused. In the present
case, no special reason has been assigned by the High Court for declining the
appellants' prayer for stay. This being the position, we are of the view that
the High Court was not justified in refusing to grant stay.
....2/- -2-
Accordingly, the appeal is allowed, impugned order refusing the prayer for stay
is set aside and it is directed that, pending disposal of the appeal before the
High Court, further proceeding in the execution case shall remain stayed on
appellants' depositing in the Executing Court a sum of Rs.1,000/- per month by way
of use and occupation of the suit premises beginning from the month of
December, 2002, till the month of July, 2008, within three months from today.
This is so because on filing of appeal against the judgment and decree of the
Trial Court, the learned Registrar of the Patna High Court passed interim order
on 2nd December, 2002, which was subsequently vacated and application for stay,
bearing No.I.A. No.4340 of 2003, filed by the appellants was dismissed by the
High Court. The appellants are further directed to deposit a sum of Rupees one
thousand per month for use and occupation of the premises from the month of
August, 2008, by the fifteenth day of the following month, i.e., the amount
from the month of August, 2008, should be deposited by 15th of September, 2008,
and likewise for subsequent months. All the deposits shall be made in the
Executing Court. It would be open to the decree-holder to withdraw the
aforesaid amount, upon furnishing security to the satisfaction of the Executing
Court, which need not necessarily be in cash or in the form of bank guarantee.
......................J.
[B.N. AGRAWAL]
......................J.
[G.S. SINGHVI]
New
Delhi,
August
13, 2008.
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