The mandate of Rule 5 of Order
41 of the Civil Procedure Code provides that
the appellate Court may for sufficient cause
order stay of execution of such decree.
Therefore, in absence of any stay
in appeal, to impose onerous condition of
furnishing of Bank guarantee by the executing
Court was not proper. The decree which is
passed in favour of the petitioner, who is
agriculturist, could not have been frustrated
by imposing the condition of furnishing Bank
guarantee while withdrawing the decretal
amount by the petitioner which was deposited
by the respondents in pursuant to the decree
passed by the Reference Court. It follows
from Rule 5 of Order 41 of the Civil
Procedure Code that unless reasons are
recorded and stay is granted by the appellate
Court, merely filing of appeal should not be
taken as stay in appeal.
WRIT PETITION NO.8377 OF 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Deelip s/o Vishwanath Patil,
VERSUS
The Special Land Acquisition Officer,
CORAM : S.S. SHINDE, J.
DATED : 6TH MAY, 2013
Citation; 2013 (4) ALL M R 669,2013(4)ABR 427,2013(4)BomCR598,2013(5) MHLJ 243
It is the case of the petitioners that,
3.
the petitioner in W.P. No. 8377 of 2012 is the
owner of land Gat No. 11/2/3 admeasuring 1 Hector
0 Are, petitioner in W.P. No. 8379 of 2012 is the
owner of land Gat No. 11/2/1 admeasuring 3 Hector
92 Are, Gat No. 113/B admeasuring 2 Hector 15 Are,
and land Gat No.113/A admeasuring 1 Hector 33 Are
and potkharaba 0.02, the petitioner in W.P. No.
8392 of 2012 is the owner of land Gat No. 11/2/4
admeasuring 2 Hector 46 Are and the petitioner in
W.P. No. 8395 of 2012 is the owner of land Gat No.
113/B admeasuring 2 Hector 15 Are and Gat No.
113/A admeasuring 1 Hector 33 Are and 0.02
potkharaba, situated at village Hingne. The land
of the petitioners was acquired by the State
Government for Waghur Project. Notification under
section 4 of the Land Acquisition Act was
published on 30th October, 1997, notification
under section 6 was published in Government
Gazette on 5th November, 1998, the possession of
lands were taken on 28th June, 2001, Award is
passed by the S.L.A.O. on 21st December, 2000. It
is further case of the petitioners that, being
aggrieved by the compensation awarded by the
S.L.A.O., the Reference Applications are preferred
before the trial Court for enhancement.
4.
It is further case of the petitioners
that, L.A.R. Nos. 147 of 2006 and 141 of 2006 were
filed in respect of the land of the petitioner in
W.P. No.8377 of 2012, L.A.R. Nos. 140 of 2006 and
141 of 2006 were filed in respect of the land of
the petitioner in W.P. No.8379 of 2012, L.A.R.
No. 146 of 2006 was filed in respect of the land
of the petitioner in W.P. No.8392 of 2012 and
L.A.R. No. 141 of 2006 was filed in respect of the
land of the petitioner in W.P. No.8395 of 2012. It
is further case of the petitioners that, on 16th
November, 2006 the Joint Civil Judge, Senior
Division, Jalgaon allowed the above mentioned Land
Acquisition References by common judgment and
order and held the market value of the land
acquired on the date of publication of
notification i.e., @ Rs. 2,50,000/ per hector for
5.
Bagayat land.
It is further case of the petitioners
that, the petitioner in W.P. No.8377 of 2012
approached the executing Court by way of Regular
Darkhast No. 497 of 2008, the petitioner in W.P.
No.8379 of 2012 approached the executing Court by
way of Regular Darkhast No.494 of 2008, the
petitioner in W.P. No. 8392 of 2012 approached the
executing Court by way of Regular Darkhast No.159
of 2009 and the petitioner in W.P. No. 8395 of
2012 approached the executing Court by way of
Regular Darkhast No.410 of 2008 for recovery of
the amount. The amount came to be deposited by the
respondents. It is further case of the petitioners
that, the executing Court has passed the order
below Exhibit1 and on application Exhibit30 on
30th April, 2009 and permitted the petitioner to
withdraw amount of Rs. 2,41,870/ in W.P. No.8377
of 2012, Rs.28,39,271/ in W.P. No.8379 of 2012,
Rs.4,17,381/ in W.P. No. 8392 of 2012 and Rs.
14,73,874/ in W.P. No. 8395 of 2012, on condition
to obtain bank guarantee of any Nationalized Bank
in the like amount after due verification and
identification till expiration of six months
period after disposal of the appeal in the Hon'ble
High Court and also sought undertaking in that
The W.P. No. 8377 of 2012 is filed being
6.
regard.
aggrieved by the part of the order by which the
petitioner is asked to furnish the bank guarantee
for withdrawal of the amount of Rs.2,41,870/. The
W.P. No. 8379 of 2012 is filed being aggrieved by
the part of the order by which the petitioner is
asked to furnish the bank guarantee for withdrawal
of the amount of Rs.28,39,271/. The W.P. No. 8392
of 2012 is filed being aggrieved by the part of
the order by which the petitioner is asked to
furnish the bank guarantee for withdrawal of the
amount of Rs.4,17,381/ and the W.P. No. 8392 of
2012 is filed being aggrieved by the part of the
order by which the petitioner is asked to furnish
the bank guarantee for withdrawal of the amount of
7.
Rs.14,73,874/.
The learned Counsel appearing for the
petitioners submits that, the condition of
furnishing bank guarantee of Nationalized Bank for
withdrawal of the amount is very harsh. The
entire land of the petitioners is acquired by the
respondent State. It is submitted that, there is
no any statement on behalf of the respondents
that, they have preferred the appeals challenging
the judgments and orders in the Reference
Applications and the stay is granted by the
appellate Court. Therefore, relying upon the
the learned Counsel appearing for the petitioners
submits that, all these writ petitions may be
allowed.
pleadings in the petitions, grounds taken thereto,
8.
The learned A.G.P. appearing for the
State or the learned Counsel appearing for the
respondent No. 2 have not brought to the notice of
this Court that, the judgments and orders under
Reference were challenged before the appellate
Court and the appellate Court has granted stay to
the execution of the judgments and orders passed
by the Joint Civil Judge, Senior Division,
Jalgaon. The learned Counsel appearing for the
respondent No. 2 fairly concedes that, the point
raised in these writ petitions is no longer res
integra and same is answered by this Court by
various judgments.
I have given careful consideration to the
9.
submissions of the Counsel appearing for the
parties. With the able assistance of the learned
Counsel appearing for the parties, perused the
pleadings in the petitions, grounds taken thereto
and the entire material placed on record. It
appears that, this Court issued notices to the
respondents on 9th October, 2012 which were made
returnable on 23rd October, 2012. Thereafter, the
the petitions were listed for hearing at least on
four to five dates, however, no reply is filed by
the respondents. Therefore, this Court has to
proceed on the footing that, there is no stay to
the common judgments and orders passed by the
Joint Civil Judge, Senior Division, Jalgaon dated
16th November, 2006 in L.A.R. Nos. 145 of 2006 to
148 of 2006 in W.P. Nos. 8377 of 2012 and 8392 of
2012, in L.A.R. Nos. 140 of 2006 and 141 of 2006
The point raised in this petition is no
10.
in W.P. Nos. 8379 of 2012 and 8395 of 2012.
longer resintegra and covered by the reported
judgment of this Court in the case of Vilas
Sumersing Patil vs. Special Land Acquisition
Officer and another [2012(2) Mh.L.J.314]. In that
case, this Court has taken a view that, if there
is no stay to the award passed by the Reference
Court, in that case, the petitioners are justified
in making a prayer for revocation of the bank
guarantee and for quashing of the order passed by
the Executing Court seeking bank guarantee from
the petitioners, as a condition for permitting the
withdrawal of the amount deposited in the Court.
Paragraph Nos. 14 to 16 of the judgment in the
14.
case of Vilas Sumersing Patil (supra) reads thus :
The provisions of Order 41 Rule 5
of the Civil Procedure Code reads thus :
“5. Stay by Appellate Court. (1) An
appeal shall not operate as a stay of
proceedings under a decree or order appealed
from except so far as the Appellate Court may
ig
order, nor shall execution of a decree be
stayed by reason only of an appeal having
been preferred from the decree; but the
Appellate Court may for sufficient cause
order stay of execution of such decree.
Explanation. An order by the appellate
Court for the stay of execution of the decree
shall be effective from the date of the
communication of such order to the Court of
first instance, but an affidavit sworn by the
appellant, based on his personal knowledge,
stating that an order for the stay of
execution of the decree has been made by the
Appellate Court shall, pending the receipt
from the Appellate Court of the order for the
stay of execution or any order to the
contrary, be acted upon by the Court of first
instance.
Stay by Court which passed the
(2)
decree. Where an application is made for
stay of execution of an appealable decree
before the expiration of the time allowed for
appealing therefrom, the Court which passed
the decree may on sufficient cause being
shown order the execution to be stayed.
(3)
No order for stay of execution shall be
made under subrule (1) or subrule (2)
(a)
ig
unless the Court making it is satisfied
that substantial loss may result to the
party applying for stay of execution unless
the order is made;
(b)
that the application has been made
without unreasonable delay; and
(c)
that security has been given by the
applicant for the due performance of such
decree or order as may ultimately be binding
upon him.
(4)
Subject to the provisions of subrule
(3), the Court may make an exparte order for
stay of execution pending the hearing of the
application.
(5)
Notwithstanding anything contained in
the foregoing subrules where the appellant
fails to make the deposit or furnish the
security specified in subrule (3) of rule 1,
the Court shall not make an order staying the
15.
execution of the decree.”
Bare perusal of provisions of Rule
5 of Order 41 of the Civil Procedure Code
would show that, an appeal shall not operate
as a stay of proceedings under a decree or
order appealed from except so far as the
appellate Court may order, nor shall
execution of a decree be stayed for reason
only of an appeal have been preferred against
the decree. The mandate of Rule 5 of Order
41 of the Civil Procedure Code provides that
the appellate Court may for sufficient cause
order stay of execution of such decree.
16.
Therefore, in absence of any stay
in appeal, to impose onerous condition of
furnishing of Bank guarantee by the executing
Court was not proper. The decree which is
passed in favour of the petitioner, who is
agriculturist, could not have been frustrated
by imposing the condition of furnishing Bank
guarantee while withdrawing the decretal
amount by the petitioner which was deposited
by the respondents in pursuant to the decree
passed by the Reference Court. It follows
from Rule 5 of Order 41 of the Civil
Procedure Code that unless reasons are
recorded and stay is granted by the appellate
Court, merely filing of appeal should not be
11.
taken as stay in appeal.
In the present case, as stated earlier
though notices are issued to the respondents on
9th October, 2012, no reply is filed on behalf of
the respondents. Nothing is brought to the notice
of this Court that, award is challenged by the
ig
respondents and there is stay order granted by the
High Court. Therefore, in absence of any reply in
the writ petitions or any document brought on
record to show that, the respondents have
preferred the appeals challenging the award and
further in the said appeals, the stay is granted
by the High Court. Therefore, it will have to
presume that, it is admitted position that, there
is no stay to the award by the High Court.
12.
In that view of the matter, in view of
the judgment of this Court in the case of Vilas
Sumersingh Patil (supra), the petitioners are very
well justified in making the prayer for revocation
of the bank guarantee and for quashing of the
order passed by the Executing Court seeking bank
guarantee from the petitioners, as a condition for
permitting for withdrawal of the amount deposited
in the Court. The petitioners to file undertaking
before the concerned Court that, in case the
appellant State Government in appeal succeeds, if
The writ petitions are allowed in terms
13.
any, the petitioner will bring back the amount.
of prayer clause (B). Rule is made absolute on
above terms.
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