S. V. REVANARADHYA Vs. K. RAMACHANDRAPPA

JUDGEMENT

(1.) This writ petition is filed under Article 227 of the Constitution of India seeking to set aside the order dtd. 26/7/2022 passed in R.A.No.55/2021 by the I Additional Senior Civil Judge, Davanagere. The Appellate Court has granted interim order dtd. 11/7/2022 staying the operation and execution of the judgment and decree passed in O.S.No.448/2013 on the file of the Principal Civil Judge and JMFC, Davanagere.

(2.) Brief facts leading to filing of this writ petition are that the petitioner herein has filed O.S.No.448/2013 before the Principal Civil Judge, Davanagere, seeking prayer for redemption of mortgage and damages. The said suit came to be decreed in part vide judgment and decree dtd. 15/9/2021 by holding that the plaintiff is entitled for redemption to redeem the mortgaged property and further held that the plaintiff is entitled for damages of Rs.12,000.00 per month from 2/5/2013 till vacating the suit schedule property by the respondents herein. Being aggrieved by the judgment and decree dtd. 15/9/2021, the respondents herein filed appeal, which was numbered as R.A.No.55/2021 before the Principal Senior Civil Judge and CJM, Davanagere. In the said proceedings, the Appellate Court vide order dtd. 26/7/2022 has allowed the I.A. filed by the respondents herein under Order 41 Rule 5 R/w Sec. 151 of CPC seeking an order of stay of the operation and execution of the judgment and decree in O.S.No.448/2013. The said interim order was being extended from time to time. Being aggrieved by the said order the present petition is filed.

(3.) Learned counsel for the petitioner submits that the trial Court considering the facts and circumstances, evidence on record has decreed the suit in O.S.No.448/2013. Being aggrieved by the same the respondents herein have filed an appeal. In the said appeal, the respondents herein have filed an I.A. under Order 41 Rule 5 of CPC seeking stay of the judgment and decree passed in O.S.No.448/2013. The Appellate Court without considering the mandate contained in Order 41 Rule 5 of CPC, has proceeded to stay the judgment and decree without directing the respondents herein to furnish the security. It is submitted that the Appellate Court has committed grave error in not directing the respondents herein to pay the rent/damages during the pendency of the appeal. Hence he seeks to allow the writ petition by directing the respondents to pay rent/damages as per the decree dtd. 15/9/2021.