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Aloka Jaigopal Biswas V/S Dalia and Others.

    Writ Petition No. 1651 of 2018

    Decided On, 23 October 2018

    At, In the High Court of Bombay at Nagpur

    By, THE HONORABLE JUSTICE: S.B. SHUKRE

    For Petitioner: R.S. Sundaram, Advocate And For Respondents: M.P. Kariya, Advocate



Judgment Text


1. Reply filed by the learned Counsel for respondent No. 1 is taken on record.

2. Rule. Rule made returnable forthwith. Heard finally by consent.

3. It is the submission of the learned Counsel for the petitioner that the material facts which ought to have been discussed and adjudicated upon by the learned District Judge have not been discussed and adjudicated on by him. The learned Counsel for the petitioner submits that the learned District Judge, while imposing conditions for staying a money decree, could not have imposed very lenient conditions. He submits that it is well settled law that generally, the stay to the money dec

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ree should not be granted and if at all it is to be granted, it must be upon the condition of depositing of the entire amount of the decree under challenge or at least a substantial part of it. But, he submits, here the learned District Judge has done the reverse. He submits that instead of directing the judgment debtor/appellant to deposit the substantial part of the money decree, which was of about Rs. 96.00 lakhs, the learned District Judge has directed her to deposit a paltry sum of Rs. 5.00 lakhs, which is nothing but a travesty of justice. He submits that the learned District Judge did not even consider directing the judgment debtor to furnish a bank guarantee in lieu of solvent security for Rs. 30.00 lakhs, a substantial sum of money.

4. The learned Counsel for respondent No. 1 submits that there was compromise between the parties in which it was agreed by the petitioner that she would be restricting her claim as against respondent No. 1 to about Rs. 10.00 lakhs and odd amount. He also submits that the trial Court has power to grant stay to the execution of money decree by directing the deposit of the amount disputed or permitting such security, as it thinks fit. He relies upon the case of Sihor Nagar Palika Bureau vs. Bhabhlubhai Virabhai & Co : (2005) 4 SCC 1.

5. I have gone through the impugned order and I find that it does not give any adequate reason for taking such a lenient view in the matter. After all, what is under challenge is a money decree and the settled law is that money decree should not be ordinarily stayed unless some exceptional reasons are given. Even in the case of Sihor Nagar Palika Bureau (supra) relied upon by the learned Counsel for respondent No. 1, this principle of law has been stated in clear terms, when it is observed by the Hon'ble Apex Court in paragraph 5 thus :

"5. .............. Ordinarily, execution of a money decree is not stayed inasmuch as satisfaction of money decree does not amount to irreparable injury and in the event of the appeal being allowed, the remedy of restitution is always available to the successful party. Still the power is there, of course, a discretionary power and is meant to be exercised in appropriate cases."

6. In the case of Malwa Strips Private Limited vs. Jyoti Limited : (2009) 2 SCC 426, the Hon'ble Apex Court has held that even though there is a discretion for staying the execution of the decree, by imposing suitable conditions, the discretion must be exercised judiciously Speaking on the discretion of the Appellate Court to impose conditions, the Hon'ble Apex Court said that the provision may not be mandatory, but the purpose for which the provision has been inserted must be taken into consideration and an exceptional case has to be made out for stay of execution of a money decree. The Hon'ble Apex Court has held that the question of causing of undue hardship to the respondent must be appropriately answered by the Court granting stay The relevant observations, as they appear in paragraph 14, of the judgment are reproduced thus:

"14. Even if the said provision is not mandatory, the purpose for which such a provision has been inserted should be taken into consideration. An exceptional case has to be made out for stay of execution of a money decree. The parliamentary intent should have been given effect to. The High Court has not said that any exceptional case has been made out. It did not arrive at the conclusion that it would cause undue hardship to the respondent if the ordinary rule to direct payment of the decretal amount or a part of it and/or directly through the judgment debtor to secure the payment of the decretal amount is granted. A strong case should be made out for passing an order of stay of execution of the decree in its entirety."

7. It is seen from the impugned order that the learned District Judge has not given any reason, which could be said to be constituting an exceptional case made out for imposing such a mild condition upon the judgment debtor while granting stay to the effect and operation of the impugned judgment and decree till final disposal of the appeal. The execution proceedings have been initiated for recovery of an amount of Rs. 96.00 lakhs and so it does not appeal to reason that the effect and operation of the decree was stayed by the learned District Judge upon imposition of conditions of the deposit of just Rs. 5.00 lakhs and permitting the judgment debtor to furnish security in the sum of Rs. 3.00 lakhs without specifying the nature of security to be furnished by the judgment debtor. Then, it was the case of the judgment debtor that the decree holder had restricted her claim as against respondent No. 1 or the judgment debtor to only Rs. 10.00 lakhs. Of course, this has been seriously disputed by the petitioner and in fact, as pointed out by the learned Counsel for the petitioner, this aspect of the matter has been appropriately adjudicated upon in favour of the petitioner by the trial Court. The learned District Judge should, nevertheless, have considered the same as it was relevant for considering imposition of appropriate conditions. But, this has not been done by the learned District Judge.

8. In view of the above, I find that the impugned order, dated 06/12/2017, is illegal and has a potential of causing prejudice to the rights of the parties and, therefore, it cannot be sustained in the eye of law.

9. The petition is therefore, allowed. The impugned order is quashed and set aside. The matter is remanded back to the Court of learned District Judge for reconsideration and disposal of the application for grant of stay afresh in accordance with law. It is made clear that the application shall be decided on it's own merit without being influenced by the observations of this Court.

10. Rule is made absolute in the above terms with no order as to costs
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