Bombay High Court
Smt. Shantabai W vs The Akola District Central on 22 October, 2010
Bench: A. H. Joshi, Prasanna B. Varale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Civil Application No. 632 of 2010
IN
Letters Patent Appeal No. 256 of 2010
IN
Writ Petition No. 5014 of 2009
1. Smt. Shantabai wd/o Shriniwas
Singhee, since deceased
by Lrs.
a] Giriraj Shrinivasji Singhee,
b]
Dhanraj Shrinivasji Singhee,
also as heir of Smt. Shantabai
widow of Shriniwasji Singhee,
both cultivators and residents
of Singdoh,
Tq. Manora, Distt.
Washim. .... Applicants.
Appellants
Petitioners
[In Jail]
Versus
1. The Akola District Central
Co-operative Bank Ltd.,
Head Office at Akola,
through Director/Chief
Executive Officer.
2. The Special Recovery
Officer and Sales
Officer, Akola
Distt. Central Co-operative
Bank Ltd., Manora Branch,
Manora,
Tq. Manora, Distt.
Washim.
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2
3. Sakhardoh Seva Sahakari
Society, a
Society registered under
Maharashtra Co-operative
Societies Act, bearing
Registration No. 858,
through its Secretary
at Sakhardoh,
Tq. Manora,
Dist. Washim.
4. Asstt. Registrar,
Co-operative Societies
at Manora,
Distt. Washim.
5.
Divisional Joint Registrar,
Co-operative Societies,
Amravati Division,
Amravati.
6. Narendra Shankarrao Raut,
at Post Jawala,
Tq. Manora,
Distt. Washim. .... Respondents.
*****
Mr. B.N. Mohta, Adv., for the applicants.
Mr. A.P. Tathod, Adv., for respondent nos. 1 and 2.
Mr. D.B. Patel, Asstt. Govt. Pleader for respondent
nos. 4 and 5.
*****
CORAM : A.H. JOSHI AND
P.B. VARALE,JJ.
Date : 22nd October. 2010.
ORAL JUDGMENT [Per A.H. Joshi, J.]:
1. This is an application praying for modification of
order passed in Letters Patent Appeal No. 256 of 2010 on 27th
July, 2010.
2. This Court had heard the Letters Patent Appeal and
issued notices.
3. In the order dated 27th July, 2010, this Court
incorporated following Clause in the order:-
without
In the meanwhile, the appellants,
prejudice to their rights
contentions in the appeal, are directed to
and
deposit a sum of Rs.3,00,000/- in this Court
within a period of six weeks from today. It
is made clear that if the appellants fail to
deposit the amount as aforementioned, the
appeal shall stand dismissed for non-
prosecution without further reference to the
court.
4. By this application, the applicants pray for
deleting the clause quoted in foregoing para, as it results
in injustice.
5. This application has been opposed by the
respondents.
6. Heard learned Adv. Mr. Mohta for the applicants,
learned Adv. Mr. A.P. Tathod for respondent nos. 1 and 2,
and learned AGP Mr. D.B. Patel for respondent nos. 4 and 5.
7. On behalf of applicants, it is argued that
imposition of such a condition precedent for hearing of
appeal:-
[a] Would defeat the purpose of Court s
taking cognizance of such appeal.
[b] Would be resulting in compounding an
error creeping in the order under
appeal, due to which Court was pleased
to admit the appeal.
[c]
Results in approval of order impugned in
appeal without hearing and application
of mind, and for a default which is
recognized by law to be mandatory pre-
requirement for hearing of appeal on
merits.
[d] Appeal is a right created by statute,
and it cannot be taken away even by
judicial order. Depending upon as to
whether any Court is satisfied, Court
may grant or refuse the prayer for stay
or any other interlocutory order, and on
such conditions, however, imposition of
such a condition as a condition
precedent for hearing of appeal results
in taking away right of appeal.
[e] Jurisdiction to impose such a condition
is neither provided or comprehended by
law.
8. This Court finds support to the propositions
advanced from following reported judgments :-
[a] B.P. Agarwal & another Vs. Dhanalakshi Bank
Ltd. & ors. [(2008) 3 SCC 397],
[b] Management of Devi Theatre Vs. Vishwanath Raju
[MHLJ 2004 (3) 1], and
[c] Mt. Afzali Begam Vs. Lala Kanhaya Lal [AIR
1932 Allahabad 511].
9. On perusal of these judgments, it is seen that
Their Lordships
ighave held that imposing a condition
deposit of money subject to which an appeal be admitted for
for
hearing on merits, is not legally justified.
10. Hon ble Supreme Court has further observed that if
the party is not able to comply with such conditions, it
results in compounding the error due to which the appeal is
being entertained.
11. We are satisfied that if an application for stay is
filed, Court would consider such application on its merits,
may order deposit or direct parties to furnish security or
to do any other act or forbearance.
12. We are further satisfied that the para quoted above
contained in the order dated 27th July, 2010 is adverse to
the law of the land as seen in the binding precedents and is
hence based on error apparent on the face, and we propose to
delete said part.
13. We, therefore, allow this Civil Application and
delete paragraph quoted in para no.3 which is last un-
numbered paragraph of order passed on 27th July, 2010 by this
Court in Letters Patent Appeal No. 256 of 2010.
14.
Parties are directed to bear own cots.
JUDGE JUDGE
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