HARDAYAL Vs. SURJA RAM

JUDGEMENT

(1.) IN a suit for recovery of Rs. 6,381. 95 Paise on account of arrears of rent and interest up to June 10, 1973, and for ejectment, a decree for ejectment and for recovery of Rs. 6,082. 10 Paise was granted by the trial Court. In the tenant's first appeal against the decree of the trial Court, an application was moved by him under Order 41, R. 5 of the Civil P. C. (hereinafter referred to as the Code)for staying of execution. The final order by which that application was disposed of was passed by Mr. Shiv Dass Tyagi, Additional District Judge, Hissar, on June 7, 1976. This is what he said in that order:-

(2.) MR. G. C. Mittal, learned counsel for the petitioner, who has forcefully assailed the order of the lower appellate Court, has submitted that the order under revision neither discloses any finding of a sufficient cause for staying the execution of the decree which is a condition precedent for the exercise of jurisdiction under Sub-rule (1) of Rule 5 of Order 41' of the Code nor conforms to the mandatory requirements of Clause (c) of Sub-rule (3) of Rule 5 of Order 41 of the Code. Sub-rule (1) and Sub-rule (3) of Rule 5 of Order 41 of the Code read as below:-

(3.) MR. P. S. Jain, learned counsel for the defendant-respondent, has submitted' that in view of the authoritative pronouncement of their Lordships of the supreme Court in M/s. D. L. F. Housing and Construction Co. (Pvt.) Ltd. v. Sarup singh, AIR 1971 SC 2324, this Court has no jurisdiction to interfere with the order of the lower Appellate Court merely because it is wrong either in law or on facts. But, their Lordships have made it clear that the Court can interfere with an order of the Court below in exercise of this very Court's jurisdiction under Section 115 of the Code if it suffers from material illegalities or irregularities in the exercise of the lower Court's jurisdiction. I have given clear finding to that effect in an earlier part of this judgment. The order of the lower appellate Court, dated June 7, 1976, cannot, therefore, possibily be upheld. The learned Additional District Judge does not appear to have been aware of the fact that he was granting stay of execution of a decree for ejectment in a case where adjudication had been made for arrears of rent for the period ending june 10, 1973, only and subsequent rent or damages amounting to thousands of rupees had become due. I am saying this because it is usual in cases of granting stay against decrees for ejectment where sufficient cause for stay is made out to impose the condition of deposit of subsequent rent by way of security under Order 41, Rule 5 (3) (c) of the Code. Even otherwise the order appears to be contradictory. In one portion of the judgment, he has required the judgment-debtor to deposit Rs. 3,000/ -. It is not clear whether that is intended to cover the admitted amount of the claim plus Rs. 370/-on account of costs etc. or that relates to substantial part of the disputed amount because out of the decretal amount of Rs. 6,082,10 Paise (which has been referred to as Rs. 596 only in the order), the defendant-respondent had not preferred any appeal against the decree for Rupees 2,630/- and had questioned the money decree to the extent of Rs. 3,452/- only. If the amount directed to be deposited is expected to represent part of the disputed claim, then the direction for the stay of the execution of the whole decree in case of deposit of that amount again would not appear to be sustainable if some one sits in appeal against that order. If the amount is intended to cover the admitted claim, then the order does not provide for any kind of security to any extent so far as the claim under appeal was concerned. Nor can an order for stay of execution be passed at all in respect of the part of the decree against which no appeal has been preferred. From whatever angle, therefore, the matter is looked at, the order of the lower appellate Court has to be set aside.