Allowed

Shahida Parveen and Anr. v. Mohd.Asraf

Rajasthan HC3 Feb 2015CSTAY/189/2015

Case brief

AI extract

What is this about?

The bench considered a second stay application regarding defaults in mesne profits. It condoned the delay by directing payment of arrears with an enhancement. The status-quo in possession was maintained subject to fulfilling the payment terms.

What did the court decide?

The delay in depositing mesne profits was condoned; the appellants were directed to pay Rs. 35,000 as arrears and costs, and thereafter Rs. 2,500 monthly, to maintain the status-quo of possession.

Shahida Parveen and Anr. Vs Mohd.Asraf — Execution and Attachment | Rajasthan HC (2015)

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S.B. CIVIL SECOND STAY APPLN. NO. 189/2015.

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IN S.B. CIVIL FIRST APPEAL NO. 290/2012. Shahida Parveen & Anr. Vs. Mohd. Asraf

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Interim Order dated 03.02.2015

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1/5

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

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:: ORDER ::

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S.B. CIVIL SECOND STAY APPLN. NO. 189/2015. IN S.B. CIVIL FIRST APPEAL NO. 290/2012.

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Shahida Parveen & Anr. Vs. Mohd. Asraf .

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Date of Order :::: 3^rd February, 2015.

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P R E S E N T

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HON'BLE Dr. JUSTICE VINEET KOTHARI

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Appearance:

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Dr. A.A. Bhansali, for the appellants-defendants. Mr. Yashwant Mehta, for the respondent-plaintiff.

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<<>>

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Heard the learned counsels for the parties on the second stay application.

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The learned counsel Dr. A.A. Bhansali appearing for the appellants-defendants submitted that the delay in payment of mesne profits , as directed by the co-ordinate bench of this Court in the order dated 10.09.2013 , occurred on account of bona fide reasons and some communication gap between the Advocate for the appellantsdefendants and their clients. He submitted that in the circumstances of the case, where the defendants claims possession over a portion of the residential house situated at Lakhara Bazar, Jodhpur was on the basis of a registered sale deed in favour of the appellant No.1 Smt. Shahida Parveen which was executed by her husband namely,

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S.B. CIVIL SECOND STAY APPLN. NO. 189/2015.

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IN S.B. CIVIL FIRST APPEAL NO. 290/2012. Shahida Parveen & Anr. Vs. Mohd. Asraf

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Interim Order dated 03.02.2015 2/5

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Mohd. Akhtar, who held a power of attorney from one Smt. Ajiman Bai wife of late Shri Rahim Bux and that sale-deed has been cancelled by the impugned judgment and decree dated 26.04.2012 passed by the learned Trial Court and, therefore, the possession of the appellants-defendants deserves to be maintained, since they are in long possession over the said portion of the residential house.

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On the other hand, the learned counsel Mr. Yashwant Mehta appearing for the respondent-plaintiff (decree holder) Mohd. Asraf vehemently opposed the aforesaid submissions and urged that the allegations levelled against the previous Advocate mr. Mukesh Sharma are false and the delay in payment of mesne profits is deliberate and the order dated 10.09.2013 itself made it clear that the default in payment of mesne profits and non-compliance would amount to vacation of the stay given in favour of the appellantsdefendants in the present first appeal and, therefore, in view of the default in payment committed by the appellants-defendants, the interim order stood vacated and there is no justification for grant of second stay order at this stage. He also submitted that there are criminal proceedings pending between the parties and the Ajiman Bai has since expired on 04.09.2007 .

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The learned counsel Dr. A.A. Bhansali appearing for the appellants-defendants also submitted that the delay in deposit of arrears of mense profits and regular mesne profit may be condoned subject to the further condition of imposition of some costs and also slight enhancement in the mesne profits. He submitted that the

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S.B. CIVIL SECOND STAY APPLN. NO. 189/2015.

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IN S.B. CIVIL FIRST APPEAL NO. 290/2012. Shahida Parveen & Anr. Vs. Mohd. Asraf

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.. Interim Order dated 03.02.2015

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3/5

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Demand Draft No. 718972 dated 17.07.2014 for Rs .24,000/- has already been produced on record before this Court which has become stale being beyond a period of three months old now and, therefore, he would get it renewed for another period of three months and another Demand Draft No. 698466 dated 30.02.2015 for Rs.8,000/- has been produced on record before this Court.

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The payment of the aforesaid amount of Rs. 32,000/- (Rs.24,000/- + Rs.8,000/-) by way of Demand Drafts, one of State Bank of Bikaner & Jaipur and another of Syndicate Bank in favour of respondent-plaintiff Mohd. Asraf son of late Shri Lal Mohd. may be made or sent by registered post/speed post under acknowledgment due to the respondent-plaintiff at the address given in the present memo of appeal or in the alternative the Demand Draft may be handed over to his counsel Mr. Yashwant Mehta and Demand Drafts of Rs. 32,000/- are given to the respondent-plaintiff Mohd. Asraf or his counsel Mr. Yashwant Mehta within a period of one week from today, the delay in deposit of the mesne profits, as directed by this Court in the order dated 10.09.2013 , shall stand condoned.

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The appellants-defendants are also liable to pay a costs of Rs. 3,000/- for such delay in payment of mesne profits caused by them. Thus, the total payable amount of arrears of mesne profits and costs for delay comes to Rs. 35,000/- to be paid by the appellants-defendants to the respondent-plaintiff within a period of one week from today. It is made clear that this amount of

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S.B. CIVIL SECOND STAY APPLN. NO. 189/2015.

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IN S.B. CIVIL FIRST APPEAL NO. 290/2012. Shahida Parveen & Anr. Vs. Mohd. Asraf

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Interim Order dated 03.02.2015

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4/5

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Rs. 35,000/- will clear-off the arrears of mesne profits upto the month of March, 2015.

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From the month of April, 2015, the appellants-defendants shall pay the mesne profits at the rate of Rs. 2,500/- per month regularly by way of Demand Draft in favour of the respondent-plaintiff Mohd. Asraf. The plaintiff-respondent is also directed to supply his Bank Account Number to the appellants-defendants or their counsel Dr. A.A. Bhansali within a period of two weeks from today.

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Subject to the aforesaid directions, the status-quo with regard to the possession over the disputed portion of the residential house is directed to be maintained by all the concerned and the decree of possession granted by the learned Trial Court in favour of the respondent-plaintiff shall not be executed against the appellantsdefendants without the leave of this Court.

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In case, there is any default in payment of arrears of mesne profits and costs, as directed above, on the part of the defendantsappellants, this second stay application shall be treated as rejected and the respondent-plaintiff (decree-holder) shall be free to execute the decree under appeal of the learned Court below forthwith.

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In case, there are two consecutive defaults in payment of mesne profits, now fixed at Rs. 2,500/- from the month of April, 2015 also, the interim protection given to the appellants-defendants shall stand vacated and the decree shall become executable.

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This interim order is subject to the final decision of the present first appeal.

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S.B. CIVIL SECOND STAY APPLN. NO. 189/2015.

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IN S.B. CIVIL FIRST APPEAL NO. 290/2012. Shahida Parveen & Anr. Vs. Mohd. Asraf .. Interim Order dated 03.02.2015

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The record of the learned Trial Court may be summoned at the time of final hearing.

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The aforesaid stale Demand Draft No. 718972 of the State Bank of Bikaner & Jaipur dated 17.07.2014 in the sum of Rs. 24,000/- may be handed over to the learned counsel Dr. A.A. Bhansali appearing for the appellants-defendants for the purpose of renewal or extension of validity period. However, a photostat copy of the aforesaid Demand Drafts be kept on the record of this first appeal.

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The second stay application is accordingly disposed of.

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(Dr. VINEET KOTHARI), J.

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/Mohan/ / S-88 /

Shahida Parveen and Anr. v. Mohd.Asraf

Case brief

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Shahida Parveen and Anr. v. Mohd.Asraf

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