RAMAR MUTHURAJA Vs. M SAIT

JUDGEMENT

(1.) The important question that arises in this petition is about the validity of delivery of the immovable property effected in the interregnum between the date of the expiry of the conditional order of stay of execution of the decree on payment of a certain amount and the date of the subsequent order extending time for payment of the said amount.

(2.) The petitioner herein has filed the above second appeal No. 81 of 1986 against the concurrent findings of the courts below decreeing the suit in favour of the respondent for delivery of possession of the suit property and for future mesne profits. Along with the appeal the petitioner filed C.M.P. 716 of 1986 for an order of stay of execution of the decree till the disposal of the appeal. On 19-2-1986 Shanmukham J. passed the following order -

(3.) It is strenuously contended by Mr. M.N. Padmanabhan, learned counsel for the petitioner, that the subsequent order of Shanmukham J. dated 2-7-1986 in C.M.P. 8401 of 1986 modifying the earlier order and extending the time for payment for a further period of four weeks dates back to the date of the petition viz. 4-3-1986, that the stay must be deemed to have been in force on 18-6-1986 when the respondent took delivery of the property, the delivery is therefore invalid and redelivery must be ordered. As I shall presently show, the contention is unsound and untenable. As per the original order dated 19-2-1986, the first payment had to be made on or before 19-4-1986 and as the petitioner defaulted to make that payment the stay stood vacated. There was, therefore, no legal impediment for the decree holder to take delivery of the immovable property in execution of the decree and the delivery effected on 18-6-1986 does not suffer from any infirmity. The subsequent order dated 2-7-1986 extending the period for payment does not have the effect of rendering invalid the delivery already effected on 18-6-1986, when there was no legal bar for such delivery. It is not the delivery effected lawfully on 18-6-1986 that has become ineffectual by the subsequent order of the court but it is the subsequent order of the court that is ineffectual so far as the delivery portion of the decree is concerned.