IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WP(C).No.2777 of 2009 (E) -------------------------------- AS.176/2008 of DISTRICT COURT, PALAKKAD .................... PETITIONER: --------------- EMOOR BHAGAVATHY DEVASWOM, KALLEKULANGARA, AKATHETHARA AMSOM, PALAKKAD TALUK, REPRESENTED BY ITS EXECUTIVE OFFICER, HR & CE DEPARTMENT, CALICUT. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENTS: ----------------- 1. MARIAMMA JOSEPH, FORMERLY PARTNER OF RIVERSIDE PLANTATIONS, MALAMPUZHA, RESIDING AT EDADIL HOUSE, KANNADY, PULINCUNNO, ALLEPPEY DISTRICT. 2. SEBASTIAN VARGHESE, PARTNER OF RIVERSIDE PLANTATIONS, MALAMPUZHA, RESIDING AT KIZHUKUNNU POST, KOTTAYAM 3. ANOOP JOSEPH, PARTNER, HILL TOP PLANTATIONS, MALAMPUZHA, RESIDING AT EDAYADIL HOUSE, KANNADY, PULINCUNNO, ALLEPPEY DISTRICT. 4. E.T. JOSEPH, DAM VIEW ESTATE, MALAMPUZHA, RESIDING AT EDAYADIL HOUSE, KANNADY, PULINCUNNO, ALLEPPEY DISTRICT. WP(C).No.2777 of 2009 (E) -2- 5. M/S. RIVERSIDE PLANTATIONS, REPRESENTED BY ITS PARTNER SEBASTIAN VARGHESE, PLANTER, MALAMPUZHA, PALAKKAD. 6. M/S. HILL TOP PLANTATIONS, REPRESENTED BY ITS PARTNER, ALEX JOSEPH, PLANTER, MALAMPUZHA, PALAKKAD. 7. M/S. DAM VIEW PLANTATIONS, REPRESENTED BY ITS PARTNER E.T. JOSEPH, RESIDING AT EDAYADIL HOUSE, KANNADY, PULINCUNNO, ALLEPPEY DISTRICT. SRI.JACOB SEBASTIAN - R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C No.2777 of 2009 ------------------------------------------------ Dated this the 28th day of January, 2009 JUDGMENT The plaintiff/decree holder in O.S.94/01 on the file of the Sub Court, Palakkad is the petitioner. It is submitted that the said suit was tried jointly with seven other connected cases and a common decree was passed on 31/03/08 and that the decree in O.S.94/01 directs the defendants in that suit to surrender the scheduled property to the plaintiff/Devaswom on or before 01/09/08 and the plaintiff is entitled to get mesne profits from the defendants at the rate of Rs.1,000/- per year per hectre from the date of suit till delivery of possession to the plaintiff or till expiration of three years from the date of decree whichever event first occurs. It is submitted that the extent of property so ordered to be surrendered is 281.37 hectors. W. P. C No.2777 of 2009 -2- That means, mesne profits at the rate decreed will be Rs.2,81,370/- per year. The suit being of the year 2001 roughly mesne profits that will have to be so paid as per the decree will be Rs.2,81,370/- x 11. It is submitted that the mesne profits so due to the decree holder will be Rs.30,95,000/- and odd. The said decree in O.S.94/01 is challenged by defendants 1 to 4 and 16 to 18 filing A.S.176/08 before the District Court, Palakkad. Plaintiff in O.S.94/01 is the first respondent in the said appeal. The other respondents in the said appeal are defendants 5, 7 and 9 to 15. Thus, all the defendants in the said suit are respondents in the appeal except defendants 6 and 8. Defendants 6 and 8 in the suit are dead and that is seen recorded also in the common judgment passed by the court below in the suit. W. P. C No.2777 of 2009 -3- 2. The grievance of the petitioner is that when Rs.30,95,000/- and odd is the money portion of the decree involved in the suit, the first appellate court has granted stay without ordering security being furnished for the said decree amount but directing only security being furnished for the cost of the suit. The first appellate court has observed that the direction to furnish security is in the discretion of court; that in a connected appeal stay has been granted without furnishing security and that the defendants are in possession of the property for the last so many years and has effected improvements. 3. Counsel for the first respondent submits that there is no such improvement so effected and that the court has already found that the defendants in the suit are not entitled to value of improvements. Under Order 41 Rule 1(3) of the C.P.C when appeals are W. P. C No.2777 of 2009 -4- filed against decree for payment of money the appellant shall within such time 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. It is not necessary that the decree has to be in a money suit. It is sufficient that the decree is also to be for payment of money. If so, Order 41 Rule 1(3) applies to the facts of this case and it is only proper that the appellants are directed to furnish security for the amount disputed in the appeal while assailing the decree passed by the trial court. 4. Advocate Sri.Jacob Sebastian has entered appearance for the second respondent and it is vehemently contended by him that without notice issued to all other respondents who are also the defendants in the suit this Court may not modify the order of the court W. P. C No.2777 of 2009 -5- below. He further contends that in this Writ Petition it is only the appellants in A.S.176/08 who are made parties and not the other respondents 2 to 10 in the appeal who have filed a separate appeal assailing the decree in O.S.94/01 aforesaid. The stay granted against execution by the first appellate court is only to the respondents in this Writ Petition and it is that, that is assailed by the first respondent/decree holder in this Writ Petition. There is no need to issue notice or to array the other defendants also in this Writ Petition. Further, it is not a final order that is being passed; this Court is passing orders only exercising supervisory powers when it is brought to the notice of this Court that apparently the first appellate court has done something wrong to the detriment of the petitioner by violating a mandatory provision contained in Order 41 Rule W. P. C No.2777 of 2009 -6- 1(3) of the C.P.C. In the circumstances, I dispose of this Writ Petition setting aside Ext.P1 stay order passed on I.A.938/08 in A.S.176/08 and direct the first appellate court to pass appropriate orders directing the appellants in the said appeal to furnish security for the amount decreed whether by way of mesne profits or by way of cost while ordering stay of execution of the decree appealed against. 5. This Writ Petition is thus allowed and is disposed of with the above directions. Issue copy of this judgment to the counsel for the petitioner and to counsel for the second respondent urgently. K.P.BALACHANDRAN, JUDGE kns/-