Bombay High Court
Eknath Shankar Paradhi,Deced. ... vs Shri Bhikaji Laxman Bhuwad on 21 February, 2023
Bench: Madhav J. Jamdar
907.sa.451.09.1..doc
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.451 OF 2009
Eknath Shankar Paradhi
(Deceased Thr.) his L.R's
Smt. Suman Eknath Paradhi & Ors. ...Appellants
Versus
Shri. Bhikaji Laxman Bhuwad ...Respondent
Mr. Madhav Kulkarni, for the Appellants.
Mr. Vijay Gharat, for the Respondent.
CORAM : MADHAV J. JAMDAR, J.
DATED : 21st FEBRUARY, 2023
P.C. :
1. Heard Mr. Kulkarni, learned counsel appearing for the
Appellants and Mr. Gharat, learned counsel appearing for
the Respondent.
2. This Court by order dated 20th January, 2010 admitted
the Second Appeal and also granted stay to the execution of
the Judgment and Decree, on the condition that, the
Appellants shall deposit Rs. 6000/- per year with effect from
December-2009 till the disposal of the Second Appeal. Mr.
Kulkarni, learned counsel appearing for the Appellants
states that, the said amount is being deposited regularly. He
states that, although, this court has stayed the impugned
907.sa.451.09.1..doc
decree of possession, still the learned Executing Court is
proceeding further with the execution proceeding in view of
the Judgment of Supreme Court in the case of Asian
Resurfacing of Road Agency Private Limited & Anr. Vs.
Central Bureau of investigation.1
3. He pointed out paragraph No. 36 of the said Judgment.
The said paragraph No.36 reads as under :
"36. In view of the above, situation of
proceedings remaining pending for long on
account of stay needs to be remedied.
Remedy is required not only for corruption
cases but for all civil and criminal cases
where on account of stay, civil and
criminal proceedings are held up. At times,
proceedings are adjourned sine die on
account of stay. Even after stay is vacated,
intimation is not received and proceedings
are not taken up. In an attempt to remedy
this situation, we consider it appropriate
to direct that in all pending cases where
stay against proceedings of a civil or
criminal trial is operating, the same will
come to an end on expiry of six months
from toady unless in an exceptional case
by a speaking order such stay is extended.
In cases where stay is granted in future,
the same will end on expiry of six months
1(2018) 16 SCC 299
907.sa.451.09.1..doc
from the date of such order unless similar
extension is granted by a speaking order.
The speaking order must show that the
case was of such exceptional nature that
continuing the stay was more important
than having the trial fnaliied. The trial
court where order of stay of civil or
criminal proceedings is produced, may fx
a date not beyond six months of the order
of stay so that on expiry of period of stay,
proceedings can commence unless order of
extension of stay is produced."
(Emphasis added)
4. A bare perusal of said paragraph No.36 shows that
the same is regarding proceeding remaining pending due
to stay in civil and criminal cases. It is clear that, the
proceeding which are contemplated by Asian Resurfacing
of Road Agency Private Limited & Anr. (supra) are the
trial proceedings and the execution proceedings are not
contemplated by the said decision. In any case, the said
decision in the Asian Resurfacing of Road Agency Private
Limited & Anr. (supra) is clarifed by further order dated
25th April 20222. In the said order, the Supreme Court has
clarifed that the direction issued in Asian Resurfacing of
Road Agency Private Limited & Anr. (supra), arose out of
the factual and legal matrix present therein. The case
2 2022 SCC Online SC 1014
907.sa.451.09.1..doc
revolved around the questions arising out of the pendency
of civil and criminal cases, i.e., of trial being halted and the
tendency towards procrastination on the strength of the
orders of stay granted. The result was that the cases were
not being taken to their logical conclusion with the speed
with which they should have been done.
5. Therefore, it is clear that, by no stretch of
imagination the said decision in Asian Resurfacing of
Road Agency Private Limited & Anr. (supra) will apply to
the execution proceedings. As this court has stayed the
possession decree, execution of the said decree cannot be
continued. Therefore, it is clarifed that, in terms of order
dated 20th January, 2010 passed in this Second Appeal,
the impugned decree of possession shall remain stayed on
the conditions stipulated in said order dated 20 th January,
2010. It is further clarifed that, the execution of said
decree of possession which has been stayed shall also
remain stayed till pendency of this Second Appeal.
[ MADHAV J. JAMDAR, J.]
