L.R.M. Kuppusamy v. The Special Tahsildar (ADW)Tirupattur,Vellore District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:27.07.2009CORAM:THE HONOURABLE MR. JUSTICE M. VENUGOPALC.R.P.(N.P.D)No. 1263 of 2008and M.P. No. 1 of 2008L.R.M. Kuppusamy....PetitionerVs.The Special Tahsildar (ADW)Tirupattur,Vellore District.....RespondentPRAYER: This Civil Revision Petition is filed under Section 115ofCPC, against the order and decreetal order dated 05.03.2008 in R.E.A3 of 2008 in R.E.P 35 of 2005 in L.A.O.P.No. 59 of 2002 on the fileof the Additional District and Sessions Judge(Fast Track Court),Tirupattur, Vellore District, For Petitioner:Mr.V.Lakshminarayanan for M/s V.RaghavachariFor Respondent:Mrs Bhavani SubburayanO R D E RThe revision petitioner/petitioner has filed this Civil RevisionPetition as against the order dated 05.03.2008 in R.E.A.No. 3 of2008 in R.E.P 35 of 2005 in L.A.O.P.No. 59 of 2002 passed by theLearned Additional District and Sessions Judge (Fast Track Court)Tirupattur, Vellore District. 2. The trial Court while passing orders in R.E.A 3 of 2008 dated05.03.2008 has inter-alia observed that "... but it would be seenfrom the order dated 26.06.2007 made in M.P. 2 of 2007 in A.S 358 of2007, there was no specific direction with regard to the withdrawalof amount which is directed to be deposited by the Land AcquisitionOfficer. There was a direction in the order of the Hon'ble HighCourt order dated 26.06.2007 made in M.P. 2 of 2007 in A.S. 358 of2007, directing the Land Acquisition Officer to deposit the 50% Awardamount. Hence this Court cannot pass or go beyond the order of theHon'ble High Court, dated 26.06.2007 and made in M.P. 2 of 2007 inA.S. 358 of 2007 and ultimately dismissed the application withoutcosts. https://hcservices.ecourts.gov.in/hcservices/

3.The learned counsel for the revision petitioner urges beforethis Court that the order of executing Court in dismissing theapplication under Rule 165 and 166 of the Civil Rule of the practiceis manifestly an erroneous and unjust one contrary to the principlesof the Civil Procedure Code and in fact the executing Court shouldhave seen that the revision petitioner has filed the ExecutionPetition for realizing the Decree amount awarded in L.A.O.P. No. 59of 2002 and as a matter of fact in the absence of any documentaryevidence to establish the respondent's case of compliance in regardto the conditional order to deposit of 50% of the amount to be paidwithin a period of 12 weeks from 26.06.2007. The executing Courtshould have granted the relief as prayed for by the revisionpetitioner and in reality the order of stay granted in M.P.No. 2 of2007 in A.S No.358 of 2007on the file of Hon'ble High Court is not insubsistence and therefore the order passed in R.E.A. No. 3 of 2008 isliable to be set aside and these aspects of the matter have not beenappreciated by the executing Court in a proper perspective which hasresulted in miscarriage of justice and therefore prays for allowingthe Civil Revision Petition in furtherance of substantial cause ofjustice.4.It is the specific contention of learned counsel for therevision petitioner that the revision petitioner is entitled to seekthe relief of compensation even during the pendency of appeal and assuch the reasoning assigned by the Executing Court in dismissing theR.E.A.No. 3 of 2008 is against the decision of this Court reported inS.Elango-v- Special Tahsildar, Adi DravidarWelfare Department, CampatTiruppattur, Vellore District (2002(2) CTC 406). In support of thesaid contention he relies on the decision above said decision wherebyand whereunder it is observed as follows:-"it is thus obvious that mere pendency of an appealdoes not operate as stay of the decree or order.Therefore, the trial Court should not have rejectedthe application merely on the ground of pendency ofthe appeal. The matter is therefore required to bere-determined by the Sub Court. It is however madeclear that in case a stay order is passed by theAppellate Authority, obviously the Sub Court has tofollow such order etc'.5.However the contention of the respondent is that therespondent has complied with the order of this Court passed inM.P.No. 2 of 2007 in A.S.No. 358 of 2007 dated 26.06.2007 by means ofdepositing a sum of Rs.6,29,393/- in 21.01.2008 before the trialcourt after deducting the income-tax amount and therefore this Courthas not passed any orders entitling the revision petitioner toreceive the said amount and in view of the fact that A.S. No. 358 of2007 is pending before this Court as against the award passed in https://hcservices.ecourts.gov.in/hcservices/ L.A.O.P.No. 59 of 2002 dated 20.2.2004 on the file of trial Court,the Land Acquisition Original Petition cannot be ordered by the trialCourt and accordingly, the trial Court has dismissed R.E.A.No. 3 of2008 and as such the said order of the trial Court need not bedisturbed by this Court.6.Countering the submission of the learned counsel for therespondent, the learned counsel for the revision petitioner contendsthat this Court in the decision S. Elango Vs. Special Tahsildar, AdiDravidar Welfare Dept., Camp at Tirupattur, Vellore District 2002 (2)CTC 406 has dealt with a case "where the revision petitioner thereinfiled an application for realisation of awarded amount which has beendeposited before the Sub Court and such application has been rejectedby the Court merely on the ground that an appeal against the award ispending in the High Court etc." and that the High Court has come tothe clear conclusion that the trial Court should not have rejectedthe application merely on ground of pendency of the appeal anddirected the matter to be re-determined by the Sub Court and it isalso made clear that in case a stay order is passed by the AppellateAuthority obviously the Sub Court has to follow the order and thesaid decision squarely applies to the facts of the present case onhand before us and therefore prays for allowing the Civil RevisionPetition.7.At this juncture, this Court recalls the observation madeby Hon'ble Supreme Court in the decision reported in Ratan SinghVs. Vijay Singh( AIR 2001 S.C .279) wherein it is held that "theexpression enforceable has been used to cover such decrees or ordersalso which become enforceable subsequently and filing of an appealwould not affect the enforceability of the decree, unless theappellate Court stays its operation. But, if the appeal results in adecree that would supersede the decree passed by the lower Court andit is the appellate Court decree which becomes enforceable, when theappellate order does not amount to a decree there would be nosupersession and hence the lower Court decree continues to beenforceable.8.In Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd.( 2005 (1) SCC 705) the Hon'ble Supreme Court has held that"condition that may be imposed under 41 Rule 5(3)(c) is not the onlycondition which the appellate Court can impose and since the power togrant stay is equitable in nature, an applicant for stay must doequity for seeking equity and hence depending on the facts of a givencase an appellate Court while passing an order of stay may put theparties on such terms the enforcement whereof would satisfy thedemand for justice of the party found successful at the end of theappeal and an applicant can be put on such reasonable terms as wouldin the opinion of the appellate court reasonably compensate thedecree-holder for loss occasioned by delay in execution of the decreeby the grant of stay, in the event of the appeal being dismissed etc." https://hcservices.ecourts.gov.in/hcservices/

9.It is reported before this court that the Hon'ble High Courthas granted stay in further proceedings in M.P.No. 2 of 2007 inA.S.No. 358 of 2007 on condition of Land Acquisition Officer shalldeposit 50% of the award amount within 12 weeks from the date ofpassing of order (i.e.) from 26.06.2007. But the Land AcquisitionOfficer has not deposited a sum of Rs.6,29,393/- on 21.01.2008 andthat too below the 50% of the award amount and therefore there is nosufficient compliance of the order passed by this Court in M.P.No. 2of 2007 in A.S.No. 358 of 2007.10.On a careful consideration of respective contentions in asmuch as A.S. NO.358 of 2007 is pending before this Court as againstthe award passed in L.A.O.P.No. 59 of 2002 dated 20.02.2004, thisCourt is of the considered view that on the basis of Equity,Fairplay, Good Conscience and even as a matter of prudence therevision petitioner is to only approach this Court for withdrawal ofsum of Rs.6,29,393/- deposited by the respondent to the credit ofL.A.O.P. No.59 of 2002 on the file of the trial Court and seek remedythereto and in that view of the matter, this Civil Revision Petitionis disposed of while granting liberty to the revision petitioner toapproach this Court on the appellate side in A.S. No.358 of 2007 bymeans of filing necessary application for seeking withdrawal of theamount in the matter in issue, if so advised. No costs. ConnectedM.P.No.1 of 2008 is closed.sd/Assistant Registrar/True Copy/Sub Assistant RegistrarprmToThe Additional District and Sessions Judge(Fast Track Court),Tirupattur, Vellore District.+1 CC to M/s. V.Raghavachari Advocate Sr.No.34868+1 CC to Government Pleader Sr.35049 CRP(NPD)NO.1263/2008AKR (CO)SRA 12/08/2009