The appellate Court's imposition of conditions to deposit rent/damages for granting stay of execution was found to be legally unsustainable.

ORDER :

This civil revision petition arises out of the order dated 01-5-2023 passed in I.A.No.578 of 2023 in A.S.No.66 of 2023 whereby stay of execution of the decree is granted in a petition filed under Order XLI, Rule 5(1) of CPC, subject to payment of rent/damages at the rate of Rs.1,20,000/-per month from 01-9-2017 till the date of granting stay and to continue to pay the said rent/damages at the rate of Rs.1,20,000/- every month on or before 10th of every succeeding month.

2. Heard Sri O. Manohar Reddy, learned Senior Counsel, representing Sri S. Sai Sanjay, learned counsel for the petitioner and Sri K. Ramalingeswara Rao, learned counsel for respondent No.1.

3. The revision petitioners are the defendants in the suit O.S.No.573 of 2018 on the file of the II Additional Senior Civil Judge, Kakinada. The said suit was filed by the respondent herein for eviction of the petitioners from the plaint schedule property which was let out to the petitioners and claiming for future damages. The said suit was decreed in the trial Court. Aggrieved thereby, the petitioners have preferred appeal and sought stay of execution of the said decree by way of filing a petition under Order XLI, Rule 5(1) of CPC.

4. The said petition was allowed granting stay by the impugned order. But the said stay was granted, subject to the condition of payment of rent/damages at the rate of Rs.1,20,000/- per month from 01-9-2017 till the date of the order and to continue to pay the said rent at the same rate every month on or before 10th of the succeeding month. It is held that failure to comply with the said conditions would result into automatic vacation of the stay order.

5. Aggrieved by the said conditions imposed while granting stay to pay Rs.1,20,000/- per month towards rent from 01-9-2017 till the date of the order and to continue to pay the same, the revision petitioner has preferred the present civil revision petition.

6. As can be seen from the decree that was passed by the trial Court, the Court has only ordered the defendants to vacate the plaint schedule property within two months from the date of decree and to deliver vacant possession of the same to the plaintiff, failing which, it is held that the plaintiff is at liberty to proceed against the defendants for recovery of possession of the same and to claim future damages from the defendants till the recovery of possession of the property. For better appreciation, the said relief portion in the decree is extracted hereunder:

“In the result, the suit is decreed with costs directing the defendants to vacate the plaint schedule property within two months from the date of decree and hand over vacant possession to the plaintiff; failing which, the plaintiff is at liberty to proceed against the defendants under due process of law. Further, the plaintiff is at liberty to claim future damages from the defendants till recovery of possession by way of separate application subject to payment of court fee.”

7. Therefore, it is now evident from the said decree that the trial Court did not grant any damages/rents from 01-9-2017 till the date of the decree. The trial Court has only ordered that the plaintiff is entitled to claim damages if possession of the property is not delivered pursuant to the said decree by way of filing a separate application. So, when the trial Court did not pass a decree for recovery of rent from 01-9-2017, it is really beyond my comprehension as to how the trial Court imposed a condition to pay the rents at the rate of Rs.1,20,000/- and that too from 01-9-2017 till date of passing the order of stay. The said order is ex facie erroneous and illegal on the face of it.

8. Even for the future damages or rent also, the plaintiff is required to file a separate application as ordered in the said decree. Therefore, the appellate Court committed a grave error in imposing the aforesaid conditions. The said conditions imposed by the appellate Court are legally unsustainable.

9. Resultantly, the civil re