IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 OP(C).No. 2360 of 2011(O) -------------------------------- AGAINST THE ORDER DATED 03/02/2010 IN IA 1533/2009 IN AS.326/2009 of DISTRICT COURT, PALAKKAD .................... PETITIONERS/DEFENDANT 1 TO 6 ---------------------------------------- 1. SAKTHIVEL, AGED 55 YEARS, S/O.PAZHANIYAPPA KOUNDER, LAKSHMANAN CHALLA, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. 2. JANAKI AMMA, AGED 85 YEARS, W/O.PAZHANIYAPPA KOUNDER, RESIDING AT LAKSHMANAN CHALLA,MUTHALAMADA AMSOM,CHITTUR TALUK, PALAKKAD DISTRICT. 3. MAYILATHAL, AGED 68 YEARS, D/O.PAZHANIYAPPA KOUNDER,MUTHALAMADA AMSOM AND DESOM, CHITTUR TALUK,PALAKKAD DISTRICT. 4. SUNDARAMBAL, AGED 62 YEARS, D/O.PAZHANIYAPPA KOUNDER,RESIDING AT MUTHALAMADA AMSOM AND DESOM, CHITTUR TALUK,PALAKKAD DISTRICT. 5. RANGARAJ, AGED 61 YEARS, S/O.PAZHANIYAPPA KOUNDER,RESIDING AT MUTHALAMADA AMSOM AND DESOM, CHITTUR TALUK,PALAKKAD DISTRICT. 6. PUSHPA, AGED 52 YEARS, D/O.PAZHANIYAPPA KOUNDER,RESIDING AT MUTHALAMADA AMSOM AND DESOM, CHITTUR TALUK,PALAKKAD DISTRICT. BY ADV. SRI.K.ANAND RESPONDENT(S): PLAINTIFF --------------------------------- ARULMOZHI VARMAN,S/O.KANTHASWAMI KOUNDER MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2360/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER OF THE LAND TRIBUNAL IN R.C.1/1986 IN I.S.359/1983 OF THE SUB COURT, PALAKKAD. P2: COPY OF THE ORDER OF THE JUDGMENT IN O.S.NO.359/1983 OF THE SUB COURT, PALAKKAD DATED 24/06/2009. P3: COPY OF THE E.P.NO.108/2010 ON THE FILES OF THE SUB COURT, PALAKKAD DATED 24/05/2010. P4: COPY OF THE ORDER IN I.A. NO.1533/09 IN A.S.NO.326/09 IN THE FILES OF THE DISTRICT COURT, PALAKKAD DATED 03/02/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2360 of 2011 -------------------------------------- Dated this the 27th day of July, 2011. JUDGMENT Petitioners suffered a decree for recovery of possession of the suit property with payment of mesne profits @ `500/- per annum from the date of suit till date of decree with interest @ 6% per annum and a direction for payment of further mesne profits at the aforesaid rate till delivery of possession of the property or until expiration of three years from the date of decree whichever is earlier. Learned Principal Sub Judge, Palakkad passed a decree to that effect in O.S.No.359 of 1983. Petitioners challenged that judgment and decree before learned District Judge, Palakkad in A.S.No.326 of 2009. In that appeal, petitioners moved I.A.No.1533 of 2009 for stay of execution of decree (which includes recovery of possession as well as payment of mesne profit as aforesaid). Learned District Judge on 3.02.2010 passed Ext.P4, order on I.A.No.1533 of 2009 observing that the decree for mesne profit is a decree for money also and in the circumstances, stayed execution of the decree subject to conditions. It is not disputed that the said conditions were not complied by petitioners and thereon decree holder launched execution of the decree by filing execution petition before the executing court. It is submitted that the executing court has ordered delivery of property. At that stage, petitioners have approached this Court with this Original Petition under Article 227 of the OP(C)No.2360/2011 2 Constitution contending that Ext.P4, order passed by the learned District Judge is illegal in that in respect of a decree for payment of mesne profit there could have been no security ordered for stay. 2. Learned counsel for petitioners contended that the decree for mesne profits cannot be equated with a decree for money since it is the profits which the person in unlawful possession of the property is liable to pay to its original owner and that liability is attached to the possession of petitioners in the suit property. According to the learned counsel, the appeal having been admitted and the appellate court is yet to decide whether possession of petitioners is lawful or whether they are liable to surrender possession. Liability for payment of mesne profit being annexed to the nature and possession of petitioners in the property cannot be said to be a decree for payment of money and hence learned District Judge was not correct in directing security to be furnished as if it were a money decree. Reliance is placed on the decision in Damodara Nayak v. Narayana Naika (2006 (2) KLT 581). 3. In response learned counsel for respondents contend that the decision cited supra has no application to the facts of this case since this Court was concerned only with the interpretation of decree for money contained in Section 10 of the Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (Kerala) (for short, “the Act”). It is pointed out by the learned counsel that so far as grant of stay under Rule 5 of OP(C)No.2360/2011 3 Order 41 of the Code is concerned it makes no distinction between a decree for money or any other decree which is executable in nature. Learned counsel placed reliance on the decision of learned Single Judge of the Rajastan High Court in Smt. Geeta Devi & Others v. District Judge, Bikaner & Others (AIR 2008 Rajastan 104) and in particular the observations in paragraph 5 of the said decision. 4. Section 10 of the Act deals with prohibition to attachment which reads: “For the execution of a money decree against a member of a Scheduled Tribe, no right or interest held by him in any immovable property, shall be liable to be attached or sold except to the extent and in the manner prescribed.” The learned Single Judge of the Rajastan High Court in the decision relied by learned counsel for respondents concurred with the order of the first appellate court granting stay of execution of a decree for delivery of possession and mesne profit. In paragraph 5 of the said decision learned Judge observed: “............essentially the decree towards mesne profits remains a money decree and there does not appear any reason to stay execution of the same.” 5. The provisions of Rule 5 of Order 41 of the Code does not OP(C)No.2360/2011 4 distinguish between a money decree and other decrees for the purpose of granting stay. But reading Rule 1(3) and Rule 5(5) of Order 41 of the Code the appellate court can direct deposit of the amount or furnish security for stay in case the decree is for payment of money. In this case, the order to furnish security was passed more than an year back. It was not challenged on time. Hence I do not intend to interfere with Ext.P4, order at this stage. 6. At this stage learned counsel for petitioners has requested time to comply with the condition imposed by learned District Judge. Learned counsel has requested three months' further time for the said purpose, stating about the difficulties that petitioners are facing to furnish security. Learned counsel for respondents contended that it is after more than one and a half years of Ext.P4 that this Original Petition is filed, that the suit is of the year 1983 and that for the last so many years petitioners are in unlawful possession and enjoyment of the property. It is also submitted that since petitioners did not comply with the conditions imposed in Ext.P4 even after long lapse of time, respondents filed execution petition and the executing court has ordered delivery. 7. Indisputably, the appeal against judgment and decree is pending before the learned District Judge. The question whether petitioners are in unlawful possession and hence are liable to surrender the property to the respondents along with mesne profit as ordered by the trial court is a matter which the appellate court is yet to decide. In the circumstances I am inclined to think that the delivery of the property must wait the decision of the appeal. OP(C)No.2360/2011 5 8. Notwithstanding that considerable time has lapsed after passing of Ext.P4, order I am inclined to show some indulgence in favour of the petitioners but, not in the way requested by learned counsel. Resultantly this Original Petition is disposed of in the following lines: i. Petitioners are granted one month's further time to comply with the conditions imposed on them by Ext.P4, order. ii. If conditions are complied within the aforesaid time, execution of the decree under challenge will stand stayed until disposal of the appeal as ordered by learned District Judge in Ext.P4, order. iii. In case conditions are not complied within the time granted hereby needless to say that this Original Petition will stand dismissed and it will be open to the respondents to proceed with the execution of decree under challenge. iv. Learned counsel for respondents submitted that the appeal is of the year 2009 and there may be a direction to the learned District Judge to expedite disposal of the appeal. I make it clear that parties or any of them could request learned District Judge for expeditious disposal of the appeal having regard to the circumstances stated. THOMAS P.JOSEPH, Judge. cks