wp.1651.18.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

WRIT PETITION NO.1651 OF 2018

Petitioner : Sau. Aloka Jaigopal Biswas,

Aged 55 years, Occ. Household,
R/o Saraswati Nagar, Rusullya,
Behind Disha ST Booth, Hoshangabad (M.P.)
-- Versus --

Respondents : 1] Dr. Smt. Dalia w/o Arun Biswas,

Aged 46 years, Occ. Doctor,
R/o Arihant Apartment, Flat No.304,
Sawangi Meghe, Wardha.

2] Anand Narayan Khobragade,

Aged Major, Occ. Business,
Managing Director,
Armor Developers Private Limited,
R/o 590, Naya Nakasha, Nagpur.

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Dr. R.S. Sundaram, Advocate for the Petitioner.
Shri M.P. Kariya, Advocate for Respondent No.1.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : S.B. SHUKRE, J.
DATE : 23rd OCTOBER, 2018.

ORAL JUDGMENT :-

Reply filed by the learned Counsel for respondent No.1

is taken on record.

02] Rule. Rule made returnable forthwith. Heard finally by

consent.

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03] 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 decree 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.

04] The learned Counsel for respondent No.1 submits that

there was compromise between the parties in which it was agreed

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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.

05] 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

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is there, of course, a discretionary power and is meant

to be exercised in appropriate cases.”

06] 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

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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.”

07] 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

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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.

08] 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.

09] The petition is therefore, allowed. The impugned order is

quashed ands 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.

(S.B. SHUKRE, J.)

*sandesh

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