IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5019 OF 2008 (Arising out of S.L.P. (C) No.8678 of 2004)

Rajaram Prasad Gupta and Anr.     ...Appellant(s)

Versus

Ramchandra Prasad and Ors.     ...Respondent(s)

O  R  D  E  R

Heard learned counsel for the parties.

Leave granted.

The Trial Court decreed the suit for declaration of title and recovery of

possession.  Against the said decree, when the appeal was preferred before the High

Court,  prayer  for  stay  of  further  proceeding  in  the  execution  case  was  refused.

Hence, this appeal by special leave.

Undisputedly,  the  suit  property  is  a  residential  house  in  which  the

appellants  are residing.  It  is well  settled that in cases  where the subject of suit  is

residential  premises  and the judgement-debtor is  residing  in  it,  prayer for  stay is

ordinarily granted.  Of course, for special reasons, it may be refused.  In the present

case,  no  special  reason  has  been  assigned  by  the  High  Court  for  declining  the

appellants' prayer for stay.  This being the position, we are of the view that the High

Court was not justified in refusing to grant stay.   

....2/-

- 2 -

Accordingly, the appeal is allowed, impugned order refusing the prayer for

stay is set aside and it is directed that, pending disposal of the appeal before the High

Court, further proceeding in the execution case shall remain stayed on appellants'

depositing in the Executing Court a sum of Rs.1,000/- per month by way of use and

occupation of the suit premises beginning from the month of December, 2002, till the

month of July, 2008, within three months from today.  This is so because on filing of

appeal against the judgment and decree of the Trial Court, the learned Registrar of

the  Patna  High  Court  passed  interim  order  on  2nd December,  2002,  which  was

subsequently vacated and application for stay, bearing No.I.A. No.4340 of 2003, filed

by  the  appellants  was  dismissed  by  the  High  Court.   The  appellants  are  further

directed to deposit a sum of Rupees one thousand per month for use and occupation

of the premises from the month of August, 2008, by the fifteenth day of the following

month, i.e., the amount from the month of August, 2008, should be deposited by 15th

of September, 2008, and likewise for subsequent months.  All the deposits shall be

made in the Executing Court.  It would be open to the decree-holder to withdraw the

aforesaid amount, upon furnishing security to the satisfaction of the Executing Court,

which need not necessarily be in cash or in the form of bank guarantee.

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

New Delhi, August 13, 2008.