Scaria Mathew Geevarghese ... vs Priti Madanlal Bora
2021 Latest Caselaw 16038 Bom

                                                                            958.WP.7191.21.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                             WRIT PETITION NO.7191 OF 2021

Scaria Mathew Geevarghese Vergees
Age : 60 years, Occu: Business,
R/o. B-1, Jyoti Nagar, Aurangabad,
Tq. & Dist. Aurangabad.                                ... PETITIONER
                                                 [Org. defendant and appellant]
      VERSUS
Kum. Priti D/o Madanlal Bora
Age : Major, Occu: Household,
R/o. SB Colony, Aurangabad
Tq. and Dist. Aurangabad                              ... RESPONDENT
                                                 [Org. Plaintiff and Respondent]
                                        ...
                Advocate for Petitioner : Mr. Kulkarni Ashutosh S.
            Advocate for respondent : Mr. U.P. Darak and Mr. P.N. Kalani
                                        ...
                             CORAM              : MANGESH S. PATIL, J.
                                    DATE         : 18.11.2021
JUDGMENT :

Heard both the sides finally. Rule. At the request of the parties,

the matter is being disposed of finally at the stage of admission.

2. The petitioner who is the original defendant suffering a money

decree is aggrieved by the rejection of his Application (Exhibit-5) by the

District Court in an Appeal preferred by him challenging the decree, thereby

refusing to stay operation and execution of the decree under challenge

under the provision of Order XLI Rule 5 of the Code of Civil Procedure.

3. Indeed, as has been observed in the impugned order, being a

money decree it could not have been stayed without calling upon the

petitioner to deposit the money under decree or insisting for some security

as is required by Order XLI Rule 1 (3) of the Code of Civil Procedure.

958.WP.7191.21.odt

4. However, one cannot comprehend as to how, instead of passing

a suitable order calling upon the petitioner to comply with the provision

contained under Order XLI Rule 1(3), the learned Judge has simply rejected

the Application. The order therefore calls for interference being illegal one.

5. After hearing both the sides, it transpires that already the

parties are before a criminal court in a proceeding under Section 138 of the

Negotiable Instruments Act. The petitioner was convicted and he has

challenged the conviction in an Appeal. As per the order passed in that

Criminal Appeal, admittedly, he has furnished a bank guarantee to the tune

of Rs.12,00,000/-. Besides, the petitioner has also deposited an amount of

Rs.3,00,000/- in the executing court.

6. The decree under challenge is for payment of more than Rs.25

lakh with interest @ 18% p.a. with effect from 08.03.2011.

7. Considering all the aforementioned facts and circumstances, it

would be appropriate to allow the Writ Petition and to direct the Appellate

Court to allow the Application (Exhibit-5) with a direction to the petitioner

to deposit a further amount of Rs.10,00,000/- and furnish a further solvent

security to the tune of Rs.10,00,000/- before the executing court, both,

within four weeks from today.

8. The Writ Petition is accordingly allowed in above terms and the

Rule is made absolute.

(MANGESH S. PATIL, J.) habeeb