Radheyshyam v. Mange Lal @ Mange Ram

1. This petitionfiled under Article227 of Constitutionof India impugns theorder dated 10.11.2023 passed by the ADJ-01, Patiala House Courts, New Delhi (‘AppellateCourt’)in RCA DJ No. 52/2023, titled as ‘Radhey Shyam and Ors. v. Mange lal @Mange Ram’ whereby the appeal was renotified to 25.11.2023, without passing any order on the application seeking interim stay of the impugned order.

2. The Petitioner herein is aggrieved by the non-grant of stay of impugned order dated 20.10.2023 passed by the JSCC/ASCJ/GJ, Patiala House Courts, New Delhi in Misc SCJ No. 26/2023, dismissing the Petitioner’s application filed under Order IX Rule 13 of Code of Civil Procedure, 1908, seeking setting aside of the ex-parte decree dated 08.05.2023.

3. This Petitioner herein is the defendant and the Respondent is the plaintiffin the civil suit bearing no. 805/2021. The said suit has been filed seeking permanent andmandatory injunction, recovery of damages and use and occupation charges with respect to ground floor and second floor of propertybearingH. No.73,KhasraNo. 224, Min., Village Araakpur, Bagh Mochi, Moti Bagh, Delhi – 110021 (‘suit property’).

4. Learned counselfor thePetitioner statesthat thesaid suit was decreed by the Additional Senior Civil Judge, Patiala House Courts, New Delhi (‘TrialCourt’)videex-partejudgmentdated08.05.2023;and theapplication filed under Order IX Rule 13 of CPC for seeking setting aside the said exparte judgment, has been dismissed by Trial Court vide order dated 20.10.2023.

4.1. He states that the Trial Court’s order dated 20.10.2023 has been challenged by way of a statutory appeal in RCA DJ No. 53/2023, wherein the Appellate Court passed the impugned order dated 10.11.2023.

4.2. He states that theseparate appeal has also been filed against the expartejudgment dated 08.05.2023 and thesameis numbered as RCA DJ NO. 49/2023.

4.3. He states that as recorded in the impugned order dated 10.11.2023, both theappealsarenow listed before the Appellate Court on 25.11.2023.

4.4. He states however in the meantime, the matter is listed before the ExecutingCourt on 24.11.2023 for adjudication of the objections filed by the Petitioner to the execution proceedings.

4.5. He states that the Petitioner seeks protection against dispossession untiltheapplication seeking interim stay, filed in RCA DJ No. 52/2023 is decided by the Appellate Court.

4.6. He states on instructionsfrom thePetitioner, who is present in Court that the Petitioner undertakes to pay the Respondent use and occupation charges at the rate of Rs. 7,500/- per month starting with the month of November,2023,untilthefinaladjudicationofthe stay applications by the Appellate Court.

4.7. He states that thepaymentofRs. 7,500/-per month for the month of November,2023 shall be deposited before the Executing Court tomorrow itself i.e., on 24.11.2023.

5. Noneappearson behalfof theRespondents, despite advance service.

6. This Court has considered the submissions of the Petitioner and perused the record.

7. The undertaking of the Petitioner as regards payment of use and occupationcharges Rs. 7,500/-per month is accepted and taken on record. The Petitioneris bound downto the same. The Petitioner is directed to pay to the Respondent thesaid charges each monthstartingNovember, 2023and continueto pay for each calendar month, on or before 10th of each month. The paymentswill be made preferably through banking channels to avoid any dispute to payment and receipt.

8. Accordingly, subject to thePetitioner depositinga sum of Rs. 7,500/with the Executing Court on 24.11.2023 and continuing to pay use and occupation charges on or before 10th day of each English calendar month, theexecution proceedings shallremainstayed,untiltheapplication for stay filed by the Petitionerin the appeal is adjudicated by the Appellate Court.