MATH SAUNA Vs. KEDAR NATH

JUDGEMENT

(1.) THE plaintiff-appellants obtained a decree against the defendant in respect of certain properties situate in village Amauli. In respect of certain other reliefs, however, the suit was decided against the plaintiffs. Both the parties preferred appeals to this Court. THE defendant appealed against that part of the decree which held that the plaintiffs were entitled to possession over the properties at Amauli. THE plaintiffs appeal was directed against the decree that plaintiff No. 3 was not the de jure Mahant but only the de facto Mahant. THE appeal filed by the defendant. (First Appeal No. 80 of 1964) was allowed and it was held that the plaintiffs were not entitled to the properties of Amauli specified as 'A', 'B', 'C' and 'E' in the Schedule attached to the plaint. Allowing the appeal of the plaintiffs it was declared that plaintiff No. 3 was both de jure and de facto Mahant of Math Sauna (plaintiff No. 1).

(2.) DURING the pendency of the defendant's appeal (F. A. No. 80 of 1964) an application was made by the defendant-appellant for staying execution of the decree for possession over the Amauli properties. The execution of the decree was stayed subject to the condition that the defendant appellant deposited a sum of Rs. 3,500/- every year in court. The plaintiff decree-holders were allowed to withdraw the amount on furnishing security. The defendant deposited a total sum of Rs. 14,000/- in pursuance of the interim order of this Court. Out of this sum the plaintiff-decree holders withdrew a sum of Rs. 7000/- on furnishing security in the trial court. While allowing the appeal filed by the defendant this Court discharged the stay order and further directed that if the amount deposited by the defendant was still in deposit in the court below, the defendant will be entitled to withdraw the same. The plaintiffs made an application in this court under Article 133 of the Constitution for a certificate for leave to appeal to the Supreme Court against the decree allowing the appeal of the defendant. On 14-5-1969 a Bench of this Court While dealing with that matter on the prayer of the plaintiffs granted four months' time to deposit back the sum of Rs. 7000/- which they had withdrawn from the court below on furnishing security. The plaintiffs on the strength of a certificate granted by this Court preferred an appeal before the Supreme Court. In that appeal they made an application for staying delivery of possession of the Amauli properties but the Court, on certain undertakings given by the defendant-respondent, declined to grant any interim order in favour of the appellants. It was further observed that the respondents were at liberty "to take such proceedings as advised to make the petitioners deposit Rs. 7,000/- ordered by the High Court." The defendant made an application to the trial court praying that the amount of Rs. 7000/- be realised from the plaintiffs. This application was made in the form prescribed for execution of a decree. The prayer in the application was that the amount be realised by sale of the property given in the registered security bonds or in any other manner which the court may deem fit and proper. The plaintiffs filed an objection asserting that the amount could not be realised by executing the decree and that they were not liable to pay the aforesaid amount. The trial court by its order dated 17-7-1971 rejected the objections of the plaintiffs and directed that the execution shall proceed after a month and in the meantime the parties may bring a stay order or a clarification from the Hon'ble the Supreme Court. The plaintiffs have challenged the correctness of the order of the trial court to proceed with the execution of the decree.

(3.) NO other point has been raised before me.