VISHWANATH Vs. CHIDANAND

JUDGEMENT

(1.) HEARD the learned counsel appearing for the petitioner and perused the impugned order dated 07.01.2015 whereunder lower appellate court in R.A. No. 24/2013 has stayed the operation and execution of the judgment and decree dated 15.04.2013 passed in O.S. No. 201/2011 till the disposal of the appeal with a condition that appellant should deposit the agreed balance amount within seven days from the date of order.

(2.) PETITIONER filed a suit for possession of the suit schedule property from the defendant contending inter alia that respondent/defendant had entered into a joint business along with plaintiff for rendering cable service at Keroor village and after some time, it was agreed that defendant would continue the business subject to he paying a sum of Rs. 26,000/ - to the plaintiff and as agreed to under agreement entered into between the parties which came to be marked as Ex. P. 1 there was non -payment of the amount by defendant. Hence, plaintiff filed a suit for possession. Defendant on service of suit summons, appeared, filed written statement and contested the matter. After adjudication, trial court decreed the suit and directed the defendant to hand over possession of the cable service namely suit schedule property to plaintiff by granting defendant six months time.

(3.) THE grievance of Mr. Jagadish Patil, learned counsel appearing for petitioner/plaintiff is that defendant is continuing his business in the suit schedule property without accounting for money received or without making any payment to the petitioner/plaintiff and as such, trial Court ought not to have stayed the judgment and decree passed by the trial Court. As could be seen from the judgment and decree passed in O.S. No. 201/2011, suit has been decreed by directing the defendant to hand over possession of the suit schedule property to plaintiff by granting six months time. In fact, prayer made in the suit was for possession only. As such, lower appellate court considering or examining any additional prayer or grievance of the plaintiff did not arise. Appeal being continuation of original proceedings and lower appellate court having admitted the appeal filed by the defendant, has stayed the operation of judgment and decree under challenge on the ground that, if, same is not stayed, appeal would become infructuous and respondent/plaintiff therein is likely to execute the decree and take possession of the suit schedule property Taking note of the grievance of plaintiff that the defendant had not paid the amount agreed to under Ex. P. 1 which was to the tune of Rs. 26,000/ - has rightly held that the amount due from defendant to the plaintiff after excluding the payment already made should be deposited within seven days. Said order would protect the interest of plaintiff also. Hence, said order cannot be construed as prejudicial to the interest of plaintiff. In that view of the matter, I find no good ground to interfere with the well reasoned order passed by the lower appellate court. However, it may be necessary to direct expeditious disposal of the appeal, at any rate, since plaintiff's counsel apprehends that defendant appellant is likely to drag on the proceedings. Hence, lower Appellate Court is hereby directed to dispose of R.A. No. 24/2013 expeditiously at any rate within three months from the date records secured from the trial Court and by affording opportunity to both the parties, and it would be subject to both parties extending co -operation to the trial Court.