PABBATHI VENKATARAMAIAH CHETTYversusPABBATHI N. RATHNAMAIAH CHETTY AND ORS.

A                PABBA THI VENKATARAMAIAH CHETTY
                                 v.
              PABBATHI N. RATHNAMAIAH CHETTY AND ORS.

                                FEBRUARY 2, 2007

B              [R.V. RA YEEND RAN AND DAL VEER BHANDARI, JJ.]


         Interim Order: Stay of execution offinal decree in a partition suit-Suit
  for partition of commercial building-Final decree passed-Appeal against-
C Pending appeal stay ofexecution offinal decree sought-High Court directing
   appeal to be listed for final hearing and staying demolition of building-
   Held, since appellant is running a lodge in the suit premises, his appeal
   would become infructuous if stay of dispossession is not granted-But at the
   same time interests of respondent also require to be protected-Therefore,
   interim order granted by High Court is modified to the effect that there shall
D be stay of dispossession of appellant pending appeal subject to appellant
   paying Rs.25,0001- per month to the respondent-High Court would dispose
   of the appeal expeditiously.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 444 of2007.

E         From the interim Order dated I .9.2006 of the High Court of Andhra
     Pradesh at Hyderabad in ASMP No. 1555/2006 in A.S. No. 454/2006.

          L. Nageshwara Rao, V. Sridhar Reddy and K.Y. Kameshwaran for the
     Appellant.

F         A. Subba Rao for the Respondents.

           The Order of the Court was delivered by

                                           ORDER

G          I. Delay condoned

           2. Leave granted.

           3. Learned counc.el for the Appellant submitted that the first Respondent
     is the only contesting Respondent and prayed that notice to Respondent
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              PABBATHI VEN KATARAMAIAH Cl-I ETTY r. PABBA THIN. RATHNAMAIAH CH ETTY 287

 'x:'     Nos_ 2 to 8, who are proforma Respondents may be dispensed with_ Notice              A
          to respondents 2 to 8 is accordingly dispensed with.

                 4. This appeal arises from an interim order of the High Court. The
          Appellant herein has filed an appeal against the final decree in a suit for
          partition. In the said appeal, he sought stay of execution of the final decree,
          which required _division of a commercial building which is in the occupation         B
          of the Appellant who is running a lodge therein. The High Court, considered
          the application for stay filed by the Appellant and made an order dated
          1.9.2006 directing that the appeal itself should be listed for final hearing after
          Dassara Vacation and till then, the building shall not be demolished.

                5. The said order is under challenge. The learned counsel for Appellant
                                                                                               c
          submits that he is in possession of the suit premises and his prayer was for
          interim stay of dispossession as he is running a lodge and an order of stay
          of demolition will not, therefore, protect his rights, pending appeal. On the
          other hand, the learned counsel for the first Pespondent submitted that the
          Appellant has been enjoying the suit premises and though the first D
          Respondent is entitled to two third share therein, he has been kept out of
  \
          possession and he is also not receiving any income therefrom. It is not in
  ~       dispute that Appellant is running a lodge in the suit premises. The appeal
      I

          against final decree filed before the High Court may become infructuous if
          stay of dispossession is not granted. But at the same time, the interests of
          first Respondent require to be protected. The learned counsel for first
                                                                                        E
          respondent estimates the minimum loss to his client as Rs. 25000/- per month.

                6. Having regard to the facts and circumstances, interests of justice
          would be served if the Appellant is directed to pay to the first Respondent
          Rs. 25,000/- (Rupees twenty five thousand) per month unconditionally during          F
          the pendency of the Appeal.

               7. We, accordingly dispose of this appeal as follows:

                 (i) The interim order dated 1.9.2006 granted by the High Court is
                 modified as follows: There shall be stay of dispossession of the              G
                 Appellant during the pend ency of the Appeal before the High Court
..--
-,               subject to the Appellant paying Rs. 25, 000/- per month to the first
                 Respondent, every month commencing from 1.2.2007. If there is any
                 default on the part of the Appellant, the stay order shall stand vacated."

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    288                          SUPREME COURT REPORTS [2007] 2 S.C.R.

A         (ii) Nothing stated above shall be construed as expression of any
          opinion on the merits of the appeal before the High Court or quantum
          of mesne profits. The order is purely interim in nature, Pending disposal
          of the appeal.

          (iii) The High Court is requested to hear and dispose of the appeal
B         expeditiously as already directed by it, in its order dated 1.9.2006.

          (iv) Parties to bear their respective costs in this appeal.

    RP.                                                     Appeal disposed of.




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