Bombay High Court
Shrikant Murlidhar Sharma vs Pranshankar B. Rajguru And Ors on 20 April, 2023
Bench: Madhav J. Jamdar
2023:BHC-AS:12162
31 WP 3475.23.doc
Dusane
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3475 OF 2023
Shrikant Murlidhar Sharma ...Petitioner
V/s.
Pranshankar B. Rajguru & Ors. ...Respondents
Ms. Shweta Sharma for Petitioner.
Mr. Gulabsingh S. Yadav for Respondent No.1.
CORAM: MADHAV J. JAMDAR, J.
DATE: 20th APRIL 2023
P.C.:
1. Heard Ms. Shweta Sharma, learned Counsel appearing for
the Petitioner and Mr. Gulabsingh Yadav, learned Counsel
appearing for Respondent No.1.
2. The Petitioner i.e. original Plaintiff No. 4 is challenging the
legality and validity of the order dated 13 th September 2022
passed by the learned Appellate Bench of Small Causes Court at
Bandra, Mumbai in Marji Application No.13 of 2022 in Appeal
No.53 of 2011, by which the Marji Application was allowed and
Accounts Department/Nazir of Small Causes Court was directed
to pay Rs.3,56,424/- alongwith interest to the Defendants.
31 WP 3475.23.doc
3. The factual position on record shows that the learned Trial
court decreed the suit bearing R.A.E. Suit No. 24 of 2040 by the
judgment and decree dated 6th May 2011. The said decree was
challenged by the Respondent by filing (A-1) Appeal No. 53 of
2011.
4. The learned Appellate Court by judgment and decree dated
20th October 2021 set aside the judgment and decree passed by
the learned Trial Court and remanded back the matter to the
learned Trial Court for re-hearing from the stage of argument
and by directing that the said Suit bearing R.A.E. Suit No. 24 of
2004 be decided by taking into consideration the cross-
examination of PW-1, Kamlakant Murlidhar Sharma recorded in
R.A.E. Suit No. 23 of 2004.
5. As the decree of eviction was set aside and the suit was
remanded back, the application was filed in that Appeal to
withdraw the amount deposited in the Appeal and the said
application was allowed.
6. It is the contention of Mr. Sharma, learned Counsel
appearing for the Petitioner that after the remand also, now by
judgment and decree dated 17th December 2022, the said suit
has been decreed and therefore the Respondent No.1 be
directed to re-deposit the said amount. She further submits that
the Respondent No.1 has filed an appeal challenging the said
31 WP 3475.23.doc
decree dated 17th December 2022 and ex parte order of stay has
been passed.
7. It is undisputed position that Rs.2,000/- per month was
directed to be deposited in Appeal No. 53 of 2011, which was
filed challenging the judgment and decree dated 6th May 2011
passed in R.A.E. Suit No. 24 of 2004. Accordingly the aggregate
amount of Rs.3,56,424/- was deposited. It is also undisputed
position that said decree dated 6th May 2011 was set aside by
the Appellate Court by judgment and decree dated 20th October
2022. The said amount of Rs.2,000/- was directed to be
deposited in terms of the judgment passed by Atma Ram
Properties (P) Ltd. Vs. Federal Motors (P) Ltd. 1 and the said
order has been passed by exercising power under Order 41, Rule
5 of Code of Civil Procedure, 1908 i.e. the condition imposed
while staying execution of judgment and decree dated 6th May
2011. As the said decree was set aside by the Appellate Court
by judgment dated 20th October 2021, there is no illegality or
irregularity in passing order 13th September 2022 directing
refund of said amount. Therefore, no substance in the present
petition. The Writ Petition is dismissed, however, with no order
as to costs.
1. (2005) 1 Supreme Court Cases 705.
31 WP 3475.23.doc
8. It is clarified that as far as the new appeal, which has been
filed by Respondent No. 1 challenging the judgment and decree
dated 17th December 2022 passed in R.A.E. Suit No. 24 of
2004, the learned Appellate Court is required to pass fresh order
in terms of the judgment of the Supreme Court in Atma Ram
Properties (supra). All contentions in that behalf are kept
open.
9. Subject to above clarification, the Writ Petition is
dismissed, however, with no order as to costs.
(MADHAV J. JAMDAR, J.)
