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PETITIONER: GHAZIABAD DEVELOPMENT AUTHORITY, GAZIABAD

       Vs.

RESPONDENT: SMT. JAIMALA

DATE OF JUDGMENT:       02/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      This appeal  by special  leave arises from the order of the High  Court of Allahabad, made on May 10, 1996 in CR No. 352 of  1995. It  is not  necessary to narrate all the facts relating to  the controversy  in execution. It is now not in dispute that  against the  decree of  the trial  Court,  the appeal has  been filed  in the High Court. The appeal is now pending. When  the respondent had taken out execution of the decree of  the trial  Court, the  respondent had  also filed another Revision  No. 56-95  and the  High Court has granted stay on  May 15,  1995  of  the  execution  of  the  decree. Thereafter without  knowledge, the learned counsel appearing for the  appellant, appears  to have made a statement in the executing Court  as well  as  in  the  High  Court  that  no revision  was   filled  against  the  order  passed  by  the executing Court.  As a consequence, a direction was given in the impugned order to enforce the decree and exemplary costs were  awarded.   However,  the   learned  counsel   for  the respondent has  brought to  out notice  that the  Court  has stayed the  execution of  the decree  and the appellant have under threat of contempt executed the sale deed in favour of the respondent.  In view  of the  act  that  sale  deed  has already been  registered in  favour  of  the  respondent  in execution of  the decree, we decline to go into the question of the  legality of  the execution, in spite of the order of stay granted  by the  High Court  in the aforesaid revision. However, whether  the respondent requires to pay at the rate of Rs.  500/- per  sq. yd.  or at  the rate of Rs. 800/- per sq.yd. is  the subject  matter of the dispute in the pending appeal. Under these circumstances, the execution of the sale deed  will   be  subject   to  the  result  in  the  appeal. Accordingly the  imposition of  the exemplary  costs by  the High Court for a sum of Rs. 25,000/- is not warranted on the facts in this case and is accordingly set aside.      The appeal  is accordingly allowed to the above extent. No costs.

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