IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:27.07.2009 CORAM: THE HONOURABLE MR. JUSTICE M. VENUGOPAL C.R.P.(N.P.D)No. 1263 of 2008 and M.P. No. 1 of 2008 L.R.M. Kuppusamy .... Petitioner Vs. The Special Tahsildar (ADW) Tirupattur, Vellore District. .... Respondent PRAYER: This Civil Revision Petition is filed under Section 115of CPC, against the order and decreetal order dated 05.03.2008 in R.E.A 3 of 2008 in R.E.P 35 of 2005 in L.A.O.P.No. 59 of 2002 on the file of the Additional District and Sessions Judge(Fast Track Court), Tirupattur, Vellore District, For Petitioner : Mr.V.Lakshminarayanan for M/s V.Raghavachari For Respondent : Mrs Bhavani Subburayan O R D E R The revision petitioner/petitioner has filed this Civil Revision Petition as against the order dated 05.03.2008 in R.E.A.No. 3 of 2008 in R.E.P 35 of 2005 in L.A.O.P.No. 59 of 2002 passed by the Learned Additional District and Sessions Judge (Fast Track Court) Tirupattur, Vellore District. 2. The trial Court while passing orders in R.E.A 3 of 2008 dated 05.03.2008 has inter-alia observed that "... but it would be seen from the order dated 26.06.2007 made in M.P. 2 of 2007 in A.S 358 of 2007, there was no specific direction with regard to the withdrawal of amount which is directed to be deposited by the Land Acquisition Officer. There was a direction in the order of the Hon'ble High Court order dated 26.06.2007 made in M.P. 2 of 2007 in A.S. 358 of 2007, directing the Land Acquisition Officer to deposit the 50% Award amount. Hence this Court cannot pass or go beyond the order of the Hon'ble High Court, dated 26.06.2007 and made in M.P. 2 of 2007 in A.S. 358 of 2007 and ultimately dismissed the application without costs. https://hcservices.ecourts.gov.in/hcservices/ 3.The learned counsel for the revision petitioner urges before this Court that the order of executing Court in dismissing the application under Rule 165 and 166 of the Civil Rule of the practice is manifestly an erroneous and unjust one contrary to the principles of the Civil Procedure Code and in fact the executing Court should have seen that the revision petitioner has filed the Execution Petition for realizing the Decree amount awarded in L.A.O.P. No. 59 of 2002 and as a matter of fact in the absence of any documentary evidence to establish the respondent's case of compliance in regard to the conditional order to deposit of 50% of the amount to be paid within a period of 12 weeks from 26.06.2007. The executing Court should have granted the relief as prayed for by the revision petitioner and in reality the order of stay granted in M.P.No. 2 of 2007 in A.S No.358 of 2007on the file of Hon'ble High Court is not in subsistence and therefore the order passed in R.E.A. No. 3 of 2008 is liable to be set aside and these aspects of the matter have not been appreciated by the executing Court in a proper perspective which has resulted in miscarriage of justice and therefore prays for allowing the Civil Revision Petition in furtherance of substantial cause of justice. 4.It is the specific contention of learned counsel for the revision petitioner that the revision petitioner is entitled to seek the relief of compensation even during the pendency of appeal and as such the reasoning assigned by the Executing Court in dismissing the R.E.A.No. 3 of 2008 is against the decision of this Court reported in S.Elango-v- Special Tahsildar, Adi DravidarWelfare Department, Camp atTiruppattur, Vellore District (2002(2) CTC 406). In support of the said contention he relies on the decision above said decision whereby and whereunder it is observed as follows:- "it is thus obvious that mere pendency of an appeal does not operate as stay of the decree or order. Therefore, the trial Court should not have rejected the application merely on the ground of pendency of the appeal. The matter is therefore required to be re-determined by the Sub Court. It is however made clear that in case a stay order is passed by the Appellate Authority, obviously the Sub Court has to follow such order etc'. 5. However the contention of the respondent is that the respondent has complied with the order of this Court passed in M.P.No. 2 of 2007 in A.S.No. 358 of 2007 dated 26.06.2007 by means of depositing a sum of Rs.6,29,393/- in 21.01.2008 before the trial court after deducting the income-tax amount and therefore this Court has not passed any orders entitling the revision petitioner to receive the said amount and in view of the fact that A.S. No. 358 of 2007 is pending before this Court as against the award passed in https://hcservices.ecourts.gov.in/hcservices/ L.A.O.P.No. 59 of 2002 dated 20.2.2004 on the file of trial Court, the Land Acquisition Original Petition cannot be ordered by the trial Court and accordingly, the trial Court has dismissed R.E.A.No. 3 of 2008 and as such the said order of the trial Court need not be disturbed by this Court. 6. Countering the submission of the learned counsel for the respondent, the learned counsel for the revision petitioner contends that this Court in the decision S. Elango Vs. Special Tahsildar, Adi Dravidar Welfare Dept., Camp at Tirupattur, Vellore District 2002 (2) CTC 406 has dealt with a case "where the revision petitioner therein filed an application for realisation of awarded amount which has been deposited before the Sub Court and such application has been rejected by the Court merely on the ground that an appeal against the award is pending in the High Court etc." and that the High Court has come to the clear conclusion that the trial Court should not have rejected the application merely on ground of pendency of the appeal and directed the matter to be re-determined by the Sub Court and it is also made clear that in case a stay order is passed by the Appellate Authority obviously the Sub Court has to follow the order and the said decision squarely applies to the facts of the present case on hand before us and therefore prays for allowing the Civil Revision Petition. 7. At this juncture, this Court recalls the observation made by Hon'ble Supreme Court in the decision reported in Ratan Singh Vs. Vijay Singh( AIR 2001 S.C .279) wherein it is held that "the expression enforceable has been used to cover such decrees or orders also which become enforceable subsequently and filing of an appeal would not affect the enforceability of the decree, unless the appellate Court stays its operation. But, if the appeal results in a decree that would supersede the decree passed by the lower Court and it is the appellate Court decree which becomes enforceable, when the appellate order does not amount to a decree there would be no supersession and hence the lower Court decree continues to be enforceable. 8. In Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. ( 2005 (1) SCC 705) the Hon'ble Supreme Court has held that "condition that may be imposed under 41 Rule 5(3)(c) is not the only condition which the appellate Court can impose and since the power to grant stay is equitable in nature, an applicant for stay must do equity for seeking equity and hence depending on the facts of a given case an appellate Court while passing an order of stay may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal and an applicant can be put on such reasonable terms as would in the opinion of the appellate court reasonably compensate the decree-holder for loss occasioned by delay in execution of the decree by the grant of stay, in the event of the appeal being dismissed etc." https://hcservices.ecourts.gov.in/hcservices/ 9.It is reported before this court that the Hon'ble High Court has granted stay in further proceedings in M.P.No. 2 of 2007 in A.S.No. 358 of 2007 on condition of Land Acquisition Officer shall deposit 50% of the award amount within 12 weeks from the date of passing of order (i.e.) from 26.06.2007. But the Land Acquisition Officer has not deposited a sum of Rs.6,29,393/- on 21.01.2008 and that too below the 50% of the award amount and therefore there is no sufficient compliance of the order passed by this Court in M.P.No. 2 of 2007 in A.S.No. 358 of 2007. 10. On a careful consideration of respective contentions in as much as A.S. NO.358 of 2007 is pending before this Court as against the award passed in L.A.O.P.No. 59 of 2002 dated 20.02.2004, this Court is of the considered view that on the basis of Equity, Fairplay, Good Conscience and even as a matter of prudence the revision petitioner is to only approach this Court for withdrawal of sum of Rs.6,29,393/- deposited by the respondent to the credit of L.A.O.P. No.59 of 2002 on the file of the trial Court and seek remedy thereto and in that view of the matter, this Civil Revision Petition is disposed of while granting liberty to the revision petitioner to approach this Court on the appellate side in A.S. No.358 of 2007 by means of filing necessary application for seeking withdrawal of the amount in the matter in issue, if so advised. No costs. Connected M.P.No.1 of 2008 is closed. sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar prm To The Additional District and Sessions Judge(Fast Track Court), Tirupattur, Vellore District. +1 CC to M/s. V.Raghavachari Advocate Sr.No.34868 +1 CC to Government Pleader Sr.35049 CRP(NPD)NO.1263/2008 AKR (CO) SRA 12/08/2009 https://hcservices.ecourts.gov.in/hcservices/