GEETA DEVI Vs. DISTRICT JUDGE BIKANER

JUDGEMENT

(1.) HAVING heard learned counsel for the petitioners and having perused the material placed on record, this Court is unable to find any illegality in the order dated 25-3-2008 (Annex,6) as passed by the learned First Appellate Court while dealing with the prayer for stay over execution of the decree dated 25-1-2008 (Annex. 3) as passed by the learned Trial Court in Civil original Suit No. 42/2000 (21/1989 ).

(2.) IT is noticed from the material placed on record that the suit for recovery of possession and damages for use and occupation 01" the property in question as filed bythe plaintiff against the petitioners has been decreed by the learned Trial Court on 25-1-2008 directing delivery of possession of the- suit property to the plaintiff; and the learned trial Court has allowed mesne profits during the pendency of the suit at Rs. 25,000/-and has further allowed the same @ Rs. 500/- per month till delivery of possession to the plaintiff. The defendants petitioners have taken appeal against the judgment and decree so passed by the learned Trial Court and the learned First Appellate Court, while dealing with the prayer for stay over execution of the decree, has directed the petitioners to deposit the said amount of Rs. 25,000/-with the learned Trial Court within 15 days from the date of passing of the order, i. e. 25-3-2008 and further to continue to deposit mesne profits @ Rs. 500/- per month. The learned First Appellate Court has further ordered that if the respondent would make any application for payment of the amount so deposited by the appellants petitioners, the learned Trial Court would be free to allow payment of such amount after an undertaking that in case the appeal was decided against the respondent, he shall repay the entire amount with interest @ 9% per annum. With these observations and directions, the decree for dispossession has been ordered to remain stayed. The order passed by the learned First Appellate court remains unexceptionable and appears to have been made in proper exercise of its discretion and in the balance of equities.

(3.) LEARNED counsel for the petitioners has repeatedly referred to the statement of the plaintiff to the effect that the property would have fetched rent merely at Rs. 20-25/- per month at the time of filing of the suit and submitted that there had not been any basis for passing the decree for the amount of Rs. 25,000/- and further or payment of mesne profits @ Rs. 500/- per month and such a decree could not have been forced upon the petitioners. Learned counsel has referred to the decisions of the hon'ble Supreme Court in the case of anderson Wright and Co. v. Amar Nath Roy and Ors. 2005 DNJ (SC) 562 ; (AIR 2005 SC 2457)and Atma Ram Properties (P) Ltd. v. Federal motors (P) Ltd. (2005) 1 SCC 705.