- (1.) On or about 18-8-1953, Shri N. R. Batra got allotted 112 standard acres 7 units in village Ratauli (Jagadhri). This allotment was effected after cancelling allotment of some land originally allotted in favour of respondents, Prem Singh, his brother Narain Singh and wife Raj Kaur. Civil Writ No. 269 of 1953 was filed by Prem Singh, his brother and wife challenging the proceedings relating to the allotment in their favour. Civil Writ No. 269 of 1953 finally got dismissed on 1810-1955. Prem Singh etc. moved this Court by Civil Miscellaneous No. 883/C of 1955 on 28-10-1955, for leave to appeal to the Supreme Court and obtained ex parte stay order in the terms as under: "Stay on furnishing security for mesne profits." Prem Singh etc., however, did not furnish any security in this behalf and on 10-7-1956, this Court ordered in continuation of the last stay order in the following terms: "Two weeks' time allowed to give security for mesne profits for two years at the rate of Rs. 10,000/-per year." Prem Singh etc. filed the necessary security. On Daswant Singh stood surety. Necessary bond in that behalf was filed on this Court. The appeal by Prem Singh etc. got heard in the Supreme Court and resulted in dismissal.
(2.) After the dismissal of the said appeal by the Supreme Court, Mr. Batra moved this Court, by Civil Miscellaneous No. 1665/C of 1957 on 4-12-1957, praying for the giving of effect to the stay order dated 10-7-1956. It was submitted that the mesne profits, as contemplated by the stay order be made payable from Prem Singh etc., failing them, from the surety. In Civil Miscellaneous No. 1665/C of 1957 notice was issued to Prem Singh etc., and the surety. On the surety not having been served and the allegations made that service was willfully evaded, this Court was moved on 15th May, 1958, by Mr. Batra praying for temporary injunction mean-while restraining the respondents--Prem Singh etc.,--from selling their properties, Temporary in junction as prayed for was granted by this Court. On 25-7-1958, Prem Singh etc., filed Civil Miscellaneous No. 1046/C of 1958 seeking vacation of the said temporary injunction. The judgment will dispose of both Civil Miscellaneous No. 1665/C of 1957 and No. 1046/C of 1958.
(3.) The learned counsel for the respondents (Prem Singh etc.) in Civil Miscellaneous No. 1965/C of 1957 urged that the security for mesne profits could not be enforced by this Court either under S. 145 of 151 of the Code of Civil Procedure. It was contended that the remedy of the applicant Batra was by a regular suit, for the surety by the terms of the bond executed had hypothecated his property and created a mortgage as well as made is person liable under the terms of the bond and to enforce such a contract the parties had to have recourse to the ordinary Civil Courts. It was also contended that for the terms and for the bond not having been executed in favour of this Court, the same could not be enforced in the present proceedings. It was further urged by the learned counsel that the reading of S. 145 of the code of Civil Procedure showed that the provisions apply to suits or proceedings arising from or consequent thereupon. The Civil writ proceedings, it was maintained were not such proceedings. To support this contention, the learned counsel cited Ko Maung Gyi v. Daw Tok, AIR 1928 Rang 249, Sm. Bhagwanti v. New Bank of India Ltd., AIR 1950 EP 111)FB) and Khushiram Tejbhandas v. Jhalibai, AIR 1926 Sind 35.;