Bombay High Court
Nirmal Bhanwarlal Jain Thr ... vs Pukhraj Hanumandas Rathod And ... on 25 March, 2021
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4141 OF 2021
NIRMAL BHANWARLAL JAIN THR GENERAL POWER OF ATTORNEY
HOLDER KIRAN NAMDEV LOKARE
VERSUS
PUKHRAJ HANUMANDAS RATHOD AND OTHERS
.....
Advocate for Petitioner : Mrs. Rashmi S. Kulkarni
.....
CORAM : V. K. JADHAV, J.
DATED : 25th MARCH, 2021
PER COURT:-
1. Heard the learned counsel for the petitioner at length. Leave
to replace the Exhibit "F" and G" during the course of day.
2. It appears that being aggrieved by the judgment and decree
passed in Special Civil Suit No.237 of 2014 along with the counter-
claim dismissing thereby the Special Suit instituted by the present
petitioner and decreeing the counter-claim filed by the respondents,
the petitioner herein had preferred an appeal before the District
Court, Bhusawal along with the application for condonation of delay.
However, pending the application for condonation of delay, the
learned District Judge No.2, Bhusawal has refused to consider the
stay application. This Court by order dated 27.11.2017 in Writ
Petition No.13672 of 2017 has stayed the effect, execution and
implementation of the judgment and decree passed in Special Civil
Suit No.237 of 2014 on the condition that the petitioner to deposit
50% of the amount of money decree and to furnish surety to the
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extent of the rest of the amount before the lower Appellate Court
within a period of four weeks from the date of the order. By order
dated 26.11.2018, this Court has disposed off the writ petition by
continuing the said relief, as above till the application for condonation
of delay is decided by the District Judge, on the condition that the
Petitioner/ establishment shall tender surety as is required by the
Civil Manual along with such documents, which would indicate that
the petitioner owns the property and the property is still held by the
petitioner. Such documents shall be filed on 03.01.2019, failing
which, the ad-interim protection granted by this Court shall stand
vacated automatically on 04.01.2019.
3. It appears that the petitioner has deposited the said amount of
50% before the District Court and so also furnished the surety which
is accepted by the Court on 01.01.2019. The learned counsel
submits that by order dated 16.08.2019, the learned District Judge
No.2, Bhusawal in M.C.A. No.42 of 2017 allowed the application,
condoned the delay caused in filing the appeal subject to costs of
Rs.15,000/-. It appears that the costs has been deposited on
27.08.2019, i.e. within the period of fourteen days, as directed in the
order. The learned counsel submits that the Regular Civil Appeal is
registered. The petitioner has submitted an application Exh.5 in said
Regular Civil Appeal for stay. In addition to application Exh.5 the
petitioner has also filed an application Exh.15 for expeditious hearing
of application Exh.5. Learned District Judge has issued notice to
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other side on application Exh.15 by passing order to that effect on
7.1.2021. Learned counsel for the petitioner submits that said
applications Exh.5 and 15 are still pending before the District Court in
the pending Regular Civil Appeal No. 54 of 2019.
4. The learned counsel submits that the petitioner has deposited
50% of the amount as per the judgment and decree passed in
counter-claim and also furnished the surety which has been accepted
by the District Court. The learned counsel submits that even the
petitioner is ready to deposit the remaining 50% of the amount as per
the decree. However, meanwhile, the respondent-decree holder in
the pending Darkhast No.12 of 2017 has filed an application for
issuance of the arrest warrant, on which the Court has passed the
order to issue notice under Order XXI Rule 37 of CPC to the present
petitioner and on 17.03.2020. The learned Judge of the Executing
Court has issued jail notice to the petitioner under Order XXI Rule 37
of the CPC. It appears from the contents of the application for
issuance of the warrant under Order XXI Rule 37 of the CPC and
further application Exh.55 on which the executing court has passed
the order of issuance of jail notice that the fact about depositing of
the amount before the District Court in pending appeal in terms of the
order passed by this Court so also furnishing surety are not brought
to the notice of the executing Court. Even the executing court has
not heard the petitioner before issuing the jail notice.
5. In view of the above, issue notice to the respondent/s,
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returnable on 23.04.2021.
6. Till the next date of hearing, there shall be ad-interim relief in
terms of prayer clause 'C' and 'D'.
( V. K. JADHAV, J.)
rlj/
