Ashok S/O Narayan Thakare vs Awadhutrao S/O Dadarao Thakare
2022 Latest Caselaw 8747 Bom

Judgment                                             1                             jg.wp 955.2020.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR.

                              Writ Petition No. 955 OF 2020

Ashok S/o Narayan Thakare,
Aged about 44 years,
Occu. Agriculture,
R/o. Kupati, Post. Palashi,
Tq. Umarkhed, Dist. Yavatmal.                                                     .... Petitioner

           - Versus -

Awadhutrao S/o. Dadarao Thakare,
Aged about 53 years,
Occu. Agriculture,
R/o. Kupati, Post. Palashi,
Tq. Umarkhed, Dist. Yavatmal.                                                   .... Respondent
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Mr. V. N. Patre, Advocate for the appellant
None for the respondent
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                                                         CORAM : MANISH PITALE, J.

DATED : 5-9-2022

ORAL JUDGMENT

Heard the learned counsel for the petitioner.

2. Rule. Rule made returnable forthwith.

3. By this petition, the petitioner i.e. the original plaintiff

and decree holder has challenged order dated 23-10-2019 passed by Judgment 2 jg.wp 955.2020.odt

the Court of Joint Civil Judge (Junior Division), Umarkhed, District

Yavatmal (executing court) whereby the application filed by the

respondent (original defendant) and judgment debtor at Exhibit 18

has been allowed. As a consequence, the execution proceeding has

remained stayed before the executing court.

4. Notice was issued in this writ petition as far as back on

18-2-2020. The sole respondent was served and he has chosen not to

appear before this Court.

5. The learned counsel for the petitioner invited attention of

this Court to judgment and order dated 20-6-2017 passed by the 2 nd

Joint Civil Judge (Junior Division), Umarkhed whereby a suit for

specific performance filed by the petitioner stood allowed in the

following manner.

"1) The suit is decreed.

2) The defendant is hereby directed to execute sale deed within two months from today in favour of plaintiff of suit property Gut No. 115/1 admeasuring 00.81 Ars out of 1 hector 49 Ars from Northern side situated at Kupati, Tq. Umarkhed, by accepting remaining amount of Rs. 50,000/- (Fifty thousand) from plaintiff. If the defendant fails to comply order of the Court, then Judgment 3 jg.wp 955.2020.odt

plaintiff is to deposit Rs. 50,000/- (Fifty thousand) in the Court and get sale deed executed in his favour through Court procedure.

3) If plaintiff fails to pay or deposit the remaining amount and get sale deed executed within time given to defendant, the suit shall be deemed to have been dismissed.

4) Parties to bear their own costs.

5) The decree be drawn up accordingly."

6. It is submitted that the respondent was aggrieved by the

said judgment and decree and he filed an appeal before the District

Court, but the appeal suffered from delay of 18 days. As a

consequence, the respondent had filed an application for condonation

of delay of 18 days in filing appeal. The said application was allowed

by order dated 10-7-2018 passed by the Court of Ad-hoc District

Judge-1, Pusad, Yavatmal (appellate court). The application stood

allowed, subject to costs of Rs. 1,000/- to be deposited by the

respondent on or before 24-7-2018, which were to be paid to the

petitioner herein.

7. The respondent failed to deposit the amount of costs

within the stipulated period of time and after about ten months i.e. Judgment 4 jg.wp 955.2020.odt

on 3-4-2019, the respondent filed miscellaneous application bearing

MJC No. 24/2019 before the appellate court for permission to deposit

amount towards costs beyond the time stipulated in the order dated

10-7-2018.

8. During the pendency of the said application before the

appellate Court, the respondent filed an application at Exhibit 18

before the executing court seeking stay of the execution proceeding in

the light of pendency of the aforesaid miscellaneous application filed

by the respondent before the appellate court for permission to deposit

the costs beyond the stipulated period of time. As noted above, the

executing court allowed the said application, as a consequence of

which the execution proceeding has been stayed.

9. Learned counsel for the petitioner invited attention of

this Court to Order 41 Rule 5 of the Code of Civil Procedure (CPC) to

contend that pendency of appeal in itself cannot operate as stay of a

decree and in the present case, since the respondent had failed to

deposit amount of costs, subject to which the application for

condonation of delay in filing the appeal was allowed, as on today,

even the appeal filed by the respondent cannot be said to be pending Judgment 5 jg.wp 955.2020.odt

before the appellate court and that in these circumstances, the

application at Exhibit 18, could not have been allowed by the

executing court.

10. Perusal of Order 41 Rule 5 of CPC shows that it pertains

to stay by the appellate court. It stipulates that appeal shall not

operate as stay of proceedings under a decree or order appealed from,

except so far as the appellate court may order and it is further

specified that a decree shall not be stayed only because an appeal has

been preferred.

11. In the present case, since the respondent failed to deposit

the amount of costs as a pre-condition for the application for

condonation of delay being allowed, as on today, it cannot be said

that even the appeal is pending before the appellate court. It is

specifically asserted on behalf of the petitioner that the miscellaneous

application bearing MJC No. 24/2019, filed by the respondent

seeking permission to deposit the costs beyond the stipulated period

of time, has not been decided and it is still pending. In these

circumstances, due to non compliance of the condition to deposit of

costs within stipulated period of time, even the application for Judgment 6 jg.wp 955.2020.odt

condonation of delay cannot be said to have been allowed by the

appellate court. In these circumstances, it cannot be said that appeal

filed by the respondent is pending before the appellate court against

the decree, of which execution is sought.

12. As noted above, even mere pendency of appeal under

Order 41 Rule 5 of the CPC cannot operate as stay of the decree and

therefore, it is relevant that executing court in the present case

committed grave error in allowing the application at Exhibit 18 and

granting stay of the execution proceedings, merely because

miscellaneous application filed by the respondent bearing MJC

No. 24/2019, for permission to deposit costs beyond stipulated period

of time, was still pending before the appellate court. The executing

court has clearly committed an error of jurisdiction and wrongly

exercised power while allowing the application at Exhibit 18.

13. In view of the above, the present writ petition is allowed

and the impugned order dated 23-10-2019, is quashed and set aside.

14. The executing Court shall proceed in accordance with

law. It is made clear that the order in the present writ petition shall Judgment 7 jg.wp 955.2020.odt

not influence the appellate court in deciding MJC No. 24/2019 and

passing consequential orders in the matter.

15. Needless to say the aforesaid application bearing MJC

No. 24/2019 shall be taken up and decided immediately by the

appellate Court.

JUDGE

wasnik

Digitally signed byAVINASH YUVRAJ WASNIK Signing Date:08.09.2022 10:45