Pravin Kumar Minor Rep. By His Father Devichand Tarajee And Another v. R. Sivagnanam

Mohan, J.

1. This appeal arises out of the insolvency proceedings. The appellants before us moved an application under S. 9(2) of the Presidency Towns Insolvency Act, 1909, seeking to issue notice under the said Act on the ground that the decree in O.S No. 2307 of 1973 as modified in A.S No. 635 of 1983 has not been satisfied. Though the suit is of the year 1973 a sum of Rs. 23,600 is due and payable towards mesne Profits. No doubt Civil Appeal No. 5728 of 1985 has been preferred and in S.L.P No. 11220 of 1985 stay of dispossession has been ordered. But that does not mean the finality of the decree is lost, not again is there any bar in the execution of that part of the money decree in relation to mesne profits. The respondent put forth the order of interim stay made by the Supreme Court on 9-1-1986 and contended that as such no notice can be issued under the Insolvency Act.

2. The learned Judge (S.T Ramalingam J.) held that pending appeal before the Supreme Court should notice be issued to the respondent herein under the Presidency Towns Insolvency Act that will tarnish his image in public and therefore dismissed the application under S. 9(2) and allowed the application under S. 9(5) to set aside the insolvency notice. Thus, the appeal before us.

3. It is urged by Mr. R. Krishnaswami, learned Counsel for the appellants, that the learned Judge had committed an error in holding that merely because the appeal is pending before the Supreme Court it would be a bar for the issuance of notice under S. 9(2) and should the respondent herein succeed in the Supreme Court it will bring down the image the respondent in the eyes of the public. All the more so, in this case because the main relief of possession had been stayed as such the execution of the decree, the consequential relief of mesne profits is incorrect. Merely because an appeal is filed the finality of the decree is not lost. Notwithstanding the stay of delivery of possession still the liability to pay mesne profits cannot be avoided by the respondent. Under these circumstances the order of the learned Judge is liable to be set aside.

4. In opposition to this the learned Counsel for the respondent would urge that having regard to the terminology of S. 9(2) of the Presidency Towns Insolvency Act, 1909, two conditions are to be satisfied. Firstly the decree ought to become final and secondly it had not been stayed. In this case thus it is sure that the decree for possession alone had been stayed and the pendency of the appeal before the Supreme Court will render the finality at large. Hence the order of the learned Judge has to be upheld.

5. We have given our very careful consideration to the above argument. In this case the basis on which the learned Judge proceeded is the stay of delivery of possession ordered by the Supreme Court on 9-1-1986. That order reads as follows: —

“There will be interim stay of dispossession pending disposal of the appeal.”

It should be remembered in this connection that merely because an appeal has been filed, as rightly contended by the learned Counsel for the appellants, the finality of the decree is not lost. At any rate the liability to pay mesne profits which is in the nature of a money decree can be executed without any impediment whatsoever. This position is admitted by both sides before us. Under these circumstances we are unable to see how the mere pendency of the appeal in the Supreme Court will destroy the finality of the decree.

6. The finding of the learned Judge is that, should the respondent herein succeed in the appeal before the Supreme Court ultimately, it will bring down his image in the eyes of the public. We find this is not the relevant consideration borne out by the statutory provisions. Hence with respect, we are unable to agree with this finding. Accordingly we allow the appeal. The appellants will be entitled to their costs.

VCS/RR.