Allowed

K M Abdul Gafoor v. S Vijayalakshmi

Karnataka HC12 Aug 2014WP/19219/2014

Case brief

AI extract

What is this about?

The High Court allowed the writ petition in part, modifying an order preventing an appeal from proceeding due to undeposited mesne profits. It directed expedited hearing of the appeal, permitted respondents to withdraw 50% of the deposit with security, and remaining funds to be held pending appeal outcome.

What did the court decide?

Impugned order modified; appeal to be concluded within three months; respondents permitted to withdraw 50% of deposit against security.

K M Abdul Gafoor Vs S Vijayalakshmi — Execution and Attachment | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 12^TH DAY OF AUGUST 2014

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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WRIT PETITION No. 19219 of 2014 (GM-CPC)

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BETWEEN:

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K.M.Abdul Gafoor, Son of Late K.M.Ghouse, Aged 64 years,

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K. Mohammed Irfan, Son of Late M.K.Ghouse, Aged 62 years,

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Both petitioners having address At “Sukri Emporium”, 17/1D5, K.R.Circle, Mysore – 570 001.

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…PETITIONERS

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(By Shri. Manmohan P.N., Advocate)

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AND:

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S. Vijayalakshmi, Aged about 80 years,

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S. Rajalakshmi, Aged about 78 years,

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H.S.Srinivas Prasad, Aged about 68 years,

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All are residing at No.936, I North Main Road, Lakshmipuram, Mysore – 570 004.

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…RESPONDENTS

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(By Shri. H.S.Srinivas Prasad, [party-in-person] and Caveator Respondents 1 to 3)

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This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 25.3.2014 passed on I.A.No.3 in R.A.No.182/2014 by the court of II Additional District Judge at Mysore (vide Annexure-G) and consequently reject I.A.No.3.

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This Writ Petition is coming on for Preliminary Hearing this day, the court made the following:

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O R D E R

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The petition is filed by the Judgment Debtor who has

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suffered an order in Final Decree Proceedings directing the

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deposit of mesne profits at the rate of Rs.12,646/- for the pre-

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suit period from 1.2.1999 to 3.3.1999 and Rs.13,869/- for the

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post-suit period. Such a direction having been confirmed by

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this Court as well as the Lower Appellate Court, the same has

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been challenged in appeal. This court had occasion to consider the propriety of having granted the amount of Rs.12,646/- for the pre-suit period. Notwithstanding the same, the petitioners having filed an appeal, the appeal is pending before the court below challenging the determination of mesne profit for the post-suit period. Notwithstanding the same, the difference claimed by the petitioners and the amount that has been determined is wide, in the sense that the petitioners claimed that the rent payable in respect of the premises and the mesne profit could only be Rs.2,000/-. Hence, the vehement contest and the present petition is filed in view of the Lower Appellate Court having insisted that unless the entire amount of mesne profit determined in final decree proceedings is deposited, the appeal could not be proceeded and the petitioners having deposited the money under pressure, are before this Court questioning the propriety of such coercive measures being imposed against the petitioners.

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In any event, the appeal having been filed, the matter would have to be concluded finally. Insofar as the quantum of mesne profit determined and the contention that it is excessive, would necessarily have to be decided in the appeal. The question now is whether the respondent Nos.1 to 3 would be entitled to any of the amount in deposit.

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In the interest of justice though the party appearing in

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person representing the respondents would submit that the respondents would be entitled to the entire amount in deposit since they are entitled to much more than what has been deposited, it would be in the interest of justice if the respondents are permitted to withdraw at least 50% of the amount in deposit, against furnishing of security, pending disposal of the appeal.

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Given that there is limited scope in considering the appeal on merits, it would also be necessary for the Lower Appellate Court to expedite the matter to be considered on merits.

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Accordingly, the petition is allowed in part. The Lower Appellate Court is directed to hear the matter and dispose of the same on merits, within a period of three months if not earlier, from the date of receipt of this order. The order impugned stands modified in terms as above.

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The Registry is directed to transfer the amount in deposit in this Court to the II Additional Senior Civil Judge, Mysore in respect of proceedings in R.A.No.86/2013. The respondents are permitted to withdraw 50% of the amount in deposit, subject to furnishing security to the satisfaction of the court below. The remaining amount shall be deposited in a Nationalized Bank by the Registry of the II Additional Senior Civil Judge, Mysore, subject to the result of that appeal.

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Sd/-

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JUDGE

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K M Abdul Gafoor v. S Vijayalakshmi

Case brief

What is this about?

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K M Abdul Gafoor v. S Vijayalakshmi

Case brief

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