IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.04.2010
CORAM:
THE HON'BLE MRS.JUSTICE R.BANUMATHI
AND
THE HON'BLE MR.JUSTICE M.VENUGOPAL
M.P.No.1 of 2010
and
A.S.No.376 of 2008
ORDER :
R.BANUMATHI,J.
AND
M.VENUGOPAL,J.
(Order of the Court was made by M.VENUGOPAL,J.)
The Petitioners/Respondents 1 and 2 have filed this Miscellaneous Petition praying for issuance of a direction by this Court in directing the Respondents 1 and 2/Appellants 1 and 2 to pay the arrears of monthly due from 15.11.2008 till date and continue to pay every month the sum determined till the disposal of the main appeal.
2. The Petitioners/Respondents 1 and 2 have filed a suit for partition in respect of claiming their respective shares in the whole of the Estate that belonged originally to the joint family of the second petitioner's husband and her son, the first petitioner. The suit properties including a bus with route permit, residential house, agricultural land, financial company with commercial buildings. As a matter of fact, the bus and permit is shown as 'D' Schedule of the suit properties. The Respondents 1 and 2 are the purported purchasers of a stage carrier permit and the bus possessing route permit between Erode and Namakkal via Thiruchengode.
3. The trial Court has inter alia granted the relief to the petitioners affirming their right in the bus and the permit. Significantly, the trial Court has found that the sale of the bus and the route permit was within the knowledge of the respondents and it was pendency of the suit and it was a fraudulent transaction.
4. Before the trial Court, the petitioners filed Ex.A37 and A38, Daily Collection Account in respect of 'D' Schedule Property which indicate an average earning of Rs.6,000/- to Rs.7,000/- per day.
5. The Petitioners/Respondents 1 and 2 filed M.P.No.3 of 2008 in A.S.No.376 of 2008 praying for issuance of interim directions directing the respondents 1 and 2/Appellants to deposit the mesne profits at the rate of Rs.1,00,000/- from 18.05.2006 till the disposal of the appeal and continue to pay at the same rate every month. The Respondents/Appellants 1 and 2 filed their counter by pleading that the claim of Rs.1,00,000/- is on the higher side and that their Learned Senior counsel has informed the Court that the Appellants agreed without prejudice to the rights to pay the Petitioners/Plaintiffs at the rate of Rs.20,000/- per month with effect from 18.05.2006 and till 18.12.2008, the same works out to Rs.6.20 lakhs and this Court has directed the respondents 1 and 2 to pay the same in three installments as per the order passed by this Court in M.P.No.3 of 2008 on 16.12.2008.
6. As a matter of fact, the respondents paid only an amount of Rs.6,00,000/- instead of Rs.6,20,000/-.
7. The gist of the contention on behalf of the Petitioners/Respondents 1 and 2 is that the respondents 1 and 2/Appellants 1 and 2 are enjoying the benefit of the stage carrier bus despite the Judgment and Decree in their favour and therefore, they are bound to pay the sum agreed to by them and as directed by this Court. Also, the respondents 1 and 2/Appellants 1 and 2 are causing financial loss to the petitioners by not making the monthly installments amount and therefore, they have filed the present petition praying for issuance of a direction in directing the respondents 1 and 2 to pay the arrears of monthly dues from 15.11.2008 till today, etc.,
8. In the counter filed by the second respondent for himself and on behalf of the first respondent, it is among other things mentioned that the permit was in possession of the mother-in-law of the second petitioner/second respondent and Grand mother of the first petitioner/first respondent, is her self acquired property, stated by the First Defendant who is the father of the first petitioner and the husband of the second petitioner as well as by the Second Defendant who is the mother-in-law of the Second Petitioner and Grandmother of the First Petitioner and as per Section 14(1) of the Hindu Succession Act, any property held by a Hindu female is her self-acquired and not a joint family property and that the trial Court has wrongly decreed the suit and that Appeal No.376 of 2008 has been projected before this Court by the respondents 1 and 2/Appellants 1 and 2 and that on 28.02.2008, an interim stay of operation of the preliminary decree was granted and the main appeal was directed to be listed for final hearing on 08.04.2008.
9. The respondents 1 and 2/Appellants 1 and 2 filed M.P.Nos.1 and 2 of 2009 for modification of the order passed in M.P.No.3 of 2008 dated 16.12.2008 and this Court on 03.02.2009 has extended the time for making payment till 09.02.2009 and directed the matter to be listed on 10.02.2009.
10. Further, in M.P.Nos.1 and 2 of 2009, this Court on 16.02.2009 has observed that 'On 20.01.2009, the respondent paid a sum of Rs.50,000/- by way of Demand Draft and a sum of Rs.1,00,000/- by way of cash. On 03.02.2009, the matter came up for hearing but it was adjourned since the respondent indicate financial difficulties. On 10.02.2009, a sum of Rs.1,50,000/- was paid. Today a sum of Rs.3,20,000/- was paid. Thus, in compliance of the order dated 16.12.2008 by which about a sum of Rs.6,20,000/- was directed to be paid. We have already indicated and repeated that these payments have been made without prejudice to the rights of either parties and in view of this payment, both the counsel agree that all M.Ps. may be closed so that the appeal may be listed for final hearing and accordingly, all the M.Ps. are closed. A.S.Nos.376 of 2008 and 564 of 2008 were directed to be listed for final hearing during the first week of April 2009 before the Court which hears the First Appeals'.
11. The plea of the petitioners/Respondents 1 and 2 in M.P.No.1 of 2010 is that they are not able to pay any amount of Rs.6,20,000/- as stated in M.P.No.3 of 2008 in A.S.No.376 of 2008 and as such, the application for direction to pay a sum of Rs.20,000/- every month till the disposal of the appeal is totally incorrect and untenable one. Also, it is the stand of the petitioners/respondents 1 and 2 in M.P.No.1 of 2010 that the point involved in A.S.No.376 of 2008 revolves on a narrow compass and therefore, the main appeal itself can be taken up for hearing.
12. As on date, A.S.Nos.376 of 2008 and 564 of 2008 are admittedly pending before this Court. Inasmuch as the appeal proceedings are continuation of the original suit proceedings and moreso, when the respondents 1 and 2/Appellants 1 and 2 are enjoying the benefits of the stage carrier bus inspite of the decree passed in favour of the petitioners/respondents 1 and 2, this Court bearing in mind the overall facts and circumstances of the case and on the basis of the Equity, Fair play and good conscience directs the Respondents 1 and 2/Appellants 1 and 2 to pay a sum of Rs.20,000/- (Rupees Twenty thousand) per month with effect from 17.12.2008 till date to the Petitioners/Respondents 1 and 2 towards monthly arrears and continue to pay the said sum of Rs.20,000/- every month till disposal of the appeals.
13. Further, the Respondents 1 and 2/Appellants 1 and 2 are directed to pay the arrears from 17.12.2008 till date, within a period of four weeks from the date of receipt of a copy of this order. It is made clear that these monthly arrears will have to be paid to the second Petitioner/Second Respondent (mother of the First Petitioner/First Respondent) and the said payment is subject to the adjustment being made at the time of passing the final judgment in the appeals and with these observations, this miscellaneous petition is disposed of. No costs.
(R.B.I.J) (M.V.J)
.04.2010
Index :Yes/No
Internet:Yes/No
vri
R.BANUMATHI,J.
AND
M.VENUGOPAL,J.
VRI
PRE DELIVERY ORDER IN
M.P.NO.1 OF 2010
IN
A.S.NO.376 OF 2008
15.04.2010
PRE DELIVERY ORDER IN
M.P.NO.1 OF 2010
IN
A.S.NO.376 OF 2008
TO
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
FROM
JUSTICE M.VENUGOPAL
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