RAM SINGH AND ORS. Vs. SOHINDER SINGH BEDI

JUDGEMENT

(1.) By this application filed under Order 41 Rule 5 r/w Section 151 of the Code of Civil Procedure, 1908, the respondent/applicant seeks directions to direct the appellants to furnish security for the restoration of land and also to pay damages for use and occupation of the demised property with further directions to the appellants to continue to deposit damages every month till the disposal of the appeal.

(2.) Brief facts of the case relevant for deciding the present application are that the respondent/ applicant filed a suit (Suit No. 446/2001) for possession of the property bearing Plot No. 93, Prakash Mohalla, Sant Nagar Extension, Villlage Garhi, Jharia Maria, New Delhi which vide judgment dated 28.2.2005 was decreed in favour of the respondent. Feeling aggrieved with the said judgment, the appellant filed an appeal which is still pending. Along with the appeal, the appellant had filed an application under Order 41 Rule 5 for stay of the execution of the said decree dated 28.2.2005 which stay was granted by the Division Bench of this Court vide order dated 14.3.2005. The said stay order was made absolute by this Court vide order dated 20.4.2005 in the presence of the counsel for the respondent/ applicant. As the stay was granted without the direction to furnish security by the appellant, feeling aggrieved by the same the respondent has filed the present application under Order 41 Rule 5 to direct the appellant to furnish security for the stay granted.

(3.) The only reason given by the respondent for invoking Order 41 Rule 5 CPC is that this Court ignored the legislative mandate of Order 41 Rule 5 CPC by not giving any direction to the appellant to furnish security at the time of passing the ex-parte order dated 14.3.2005 staying the execution of the decree. The application of the respondent is strongly opposed by the appellants. In their reply, the appellants submitted that the instant appeal was heard by the Division Bench on 14.03.2005 and on the interim application moved by the appellants under Order 41 Rule 5 CPC vide CM No. 3627/2005 operation of the impugned judgment and decree dated 28.02.2005 was directed to be stayed till further orders. It was also directed that no further construction shall be carried out and status quo as on that day in respect of the title, possession and nature of construction shall be maintained by all the parties till the next date. The appellants further averred that the said order of the Division Bench dated 14.03.2005 was made absolute vide order dated 20.04.2005. The appellants further stated that the Hon'ble Division Bench has already directed the appellants to maintain status quo with regard to the title, possession and nature of the construction as existing on the property. The appellants thus stated that the application moved by the respondent is misconceived and untenable in the eyes of law.