GHAZIABAD DEVELOP.MENT AUTHORITY, GHAZIABAD A

SMT. JAIMALA

DECEMBER 2, 1996

[K. RAMASWAMY AND G.T. NANA VAT!, JJ.J B

. Decree passed by Tlial Court-Appeal prefe1red i11 High Coltlt-/Jllling pendency of appeal proceedings for execution of decree initiated--Respo11dent prefen-ed revision before High Cmm which gra11ted stay of execution of decree-Without having knowledge about stay counsel appeali11gfor appella11t C autholity made a statement ill the executing Cozm as well as i11 the High Court that 110 revision was filed agai11st the order passed by the executi11g Coltlt--As a co11sequence, a directio11 was givm i11 the impugned order to enforce the decree and exemplary costs were awarded--T7ierefore, the appella11t-Autholity under. threat of contempt executed the sale deed in favour of the respo11- D dem-Held, in the view of the fact tlzat sale deed has already been registered in favour of the respondent in execution of the decree, there is no need to go into the questio11 of the legality of the execution, in spite of the order of stay gramed by the High Court i11 the aforesaid revisio11--T71e rate of paymellt to be made by respondellt is the subject matter of the dispute i11 the pe11di11g appeaHJnder these circumstances, the executio11 of the sale deed will be E subject to the result i11 the appeal-But impositio11 of exemplary costs by High Cowt held not wal"'a11ted.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 15611 of 1996.

From the Judgment and Order dated 10.5.96 of the Allahabad High Court in C.R. No. 352 of 1995.

O.P. Rana and S. Kulshreshtha for the Appellant.

Gopal Prasad and Ejaz Maqbool for the Respondent.

The following Order of the Court was delivered :

Leave granted.

We have heard learned counsel on both sides. 423

SUPREME COURT REPORTS [1996} SUPP. 9 S.C.R.

A This appeal by special leave arises from the order of the High Court

of Allahabad, made on May 10, 1996 in CR No. 352 of 1995. It is not necessary to narrate all the facts relating to the controversy in execution.

It is now not in dispute that against the decree of the trial Court, the appeal has been filed in the High Court. The appeal is now pending. When the respondent had taken out execution of the decree of the trial Court, the respondent had also filed another Revision No. 56/95 and the High Court has granted stay on May 15, 1995 of the execution of the decree. Thereafter without knowledge, the learned counsel appearing for the appellant, appears to have made a statement in the executing Court as well as in the High Court that no revision was filed against the order passed by the C executing. Court. As a consequence, a direction was given in the impugned order to enforce the decree and exemplary costs were awarded. However, the learned counsel for the respondent has brought to our notice that the Court has stayed the execution of the decree and the appellant have under threat of contempt executed the sale deed in favour of the respondent. In D view of the fact that sale deed has already been registered in favour of the respondent in execution of the decree, we decline to go into the question of the legality of the execution, in spite of the order of stay granted by the High Court in the aforesaid revision. However, whether the respondent requires to pay at the rate of Rs. 500 per sq. yd. or at the rate of Rs. 800 per sq. yd. is the subject matter of the dispute in the pending appeal. Under E these circumstances, the execution of the sale deed will be subject to the result in the appeal. Accordingly the imposition of the exemplary costs bythe High Court for a sum of Rs. 25,000 is not warranted on the facts in this case and is accordingly set aside.

F The appeal is accordingly allowed to the above extent. No costs.

T.N.A.

Appeal allowed.