Bombay High Court
Harish S/O Santhanam Muthukrishan Thr. ... vs Shri. Dinesh S/O Bhagchand Kochar on 22 August, 2025
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CIVIL APPLICATION (C.A.F.) NO.2490/2024
IN
FIRST APPEAL NO.768/2024
(Shri Harish S/o Santhanam Muthukrishan and others Vs. Shri Dinesh S/o Bhagchand Kochar)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Akhtar Nawab Nabi Mohammed Ansari, Advocate for the appellants.
Mr. Palash R. Chakole, Advocate for the respondent.
CORAM: MRS.VRUSHALI V. JOSHI, J.
DATED: 22.8.2025.
The appellants have filed this application to stay the effect and
operation of judgment and decree dated 25.10.2023 passed by the 2 nd
Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit
No.805/2011.
2. The suit filed by the respondent for recovery of
Rs.1,76,24,700/- along with interest at the rate of Rs.18% per annum
from the date of suit. Suit was partly decreed and appellants-original
defendants were jointly and severally directed to pay
Rs.1,76,24,700/- with interest at the rate of 6% per annum from the
date of filing of suit till realization.
3. The facts, in brief, are as under:-
4. The appellants-original defendants have purchased the land i.e.
suit property for consideration of Rs.2,34,99,600/- by registered sale
deed dated 26.9.2007. Defendants paid Rs.12,50,000/- as an earnest
amount and Rs.46,24,900/- by cheque dated 26/9/2007 and agreed
to pay balance amount of Rs.1,76,24,700/- to the plaintiff within one
year from the date of execution of registered sale deed i.e. on or
before 26.9.2008. The plaintiff repeatedly demanded the amount but
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it was not paid. Hence, he has issued the notice on 4.5.2011
demanding the remaining consideration. Though the notice was
served on the defendants, they have not paid the balance amount.
Therefore, the plaintiff has filed the suit for recovery of said amount
with interest.
In said suit, the defendants have filed a counter claim.
According to the defendants, it was not informed by the plaintiff that
the suit property is reserved for play-ground in the development plan
in the year 2011. It was represented by the plaintiff that he was the
owner of the suit property and there is a temporary structure of 186
Sq. Meters. Defendants denied that title over the property remained
with the plaintiff. Defendants have stated that they are ready to pay
the balance amount if dispute is resolved by the plaintiff and title of
the suit property is cleared and if they get sanction for construction.
According to the plaintiff, the possession of the suit property
was handed over to the defendants and defendants are in use,
occupation and possession of the suit property as owners. Their
names were mutated as per Entry No.2521 dated 16.10.2007. Their
names were mutated in City Survey vide Entry No.2435 and the
defendants constructed compound wall around the suit property to
protect the same from encroachment. The defendants have paid the
taxes and submitted the plan for construction to the Nagpur
Municipal Corporation on 11.1.2008, however, Nagpur Municipal
Corporation raised an objection that the suit property is a part of
Khasara No.80/1 and bears City Survey No.2426 and the land is
reserved for proposed play-ground in the development plan in the
year 2001. As dispute as to title was created by Nagpur Municipal
Corporation, the plaintiff is under an obligation to clear the title of
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the suit property and then only the defendants are ready to pay the
amount if the plaintiff clears the title of the suit property.
5. After considering the oral and documentary evidence on record,
2nd Joint Civil Judge, Senior Division, Nagpur has partly allowed the
suit directing the defendants to pay the balance amount along with
interest to the plaintiff. The cross objection filed by the
appellants-defendants is rejected by the trial Court. The appellants
have challenged the said money decree before this Court.
6. While issuing the notice, this Court on 23.8.2024 has granted
ad interim stay to the execution of said judgment and said stay is
operating since last one year.
7. The respondent appeared before this Court and filed the reply
and opposed the application stating that the money decree can be
stayed only if an exceptional strong case is made out and that too
with a direction to deposit the entire decretal amount in Court. He
has stated that in money decree the appellants are bound to deposit
entire amount of decree in Court to pay it to the decree holder. Since
the decree is a money decree there is no question of any substantial
loss being caused to the appellants in the event decree is executed.
The appellants have not mentioned about any substantial loss being
caused to them and there is no categorical statement as to how in
case, the execution of decree impugned in this appeal is not stayed,
the appellants will suffer substantial loss.
8. The respondent has relied on the judgment in case of Bhogvati
Sakhar Karkhana Limited V/s. M/s. Chaugule and Sons reported in
2003(2) MH.L.J. 562. The Hon'ble Apex Court in Special Leave to
Appeal (C) No(s).11760-11761/2018 (Manish V/s. Godawari)
decided on 16.7.2018 has set aside the order passed by the Bombay
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High Court directing to deposit 60% of decretal amount during the
pendency of appeal and directed to deposit 100% decretal amount.
In case of Malwa Strips Pvt. Ltd. V/s. Jyoti Ltd. reported in 2009 (5)
Mh.L.J.13 the Hon'ble Supreme Court has observed that an
exceptional case has to be made out for stay of execution of money
decree. A strong case should be made out for passing an order of stay
of execution of decree in its entirety. The respondent has further
relied on the judgment of Gujarat High Court in the case of Shah
Kesharichand V/s. Ketan Babubhai reported in 1998 SCC OnLine
Guj.236 in support of his argument that no substantial loss is likely to
be caused to the appellants if the stay is not granted. Hence, prayed
to vacate the ad interim stay by rejecting this application.
9. Heard learned Advocates for the parties and perused the
record.
10. Order XLI Rule 1(3) of the Code of Civil Procedure provides
that in an appeal against the decree for payment of amount, the
appellant shall within time permitted by the Appellate Court, deposit
the amount disputed in the appeal or furnish the security in respect
thereof as the Court thinks fit. Under Order XLI Rule (5) a deposit or
security as above-stated is a condition precedent for an order by the
Appellate Court staying the execution of a decree.
11. A bare reading of the provisions referred hereinabove shows a
discretion having been conferred on the Appellate Court to direct
either deposit of the amount disputed in the appeal or to permit such
security in respect thereof being furnished as the Appellate Court may
thinks fit. Needless to say that the discretion is to be exercised
judiciously and not arbitrarily depending on the facts and
circumstances of the case.
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12. The learned Advocate for the appellants has stated that the
property which the appellants have purchased is in possession of
respondent. The respondent has no clear title over the property. The
fraud is committed by the plaintiff. The suit property itself is the
surety. It can be treated as surety furnished by the appellants instead
of depositing the amount. The learned Advocate for the appellants
has relied on the judgment of the Hon'ble Apex Court in case of Sihor
Nagar Palika Bureau V/s. Bhabhlubhai Virabhai & Co . reported in
(2005) 4 SCC 1 wherein it is observed by the Hon'ble Apex Court that
the furnishing of surety instead of deposit of amount in Court can be
permitted if the appellants have made out a prima facie strong case
for the hearing of the appeal on the merit and further in case the
public interest would be better served by the amount being retained
with the appellants during the pendency of the appeal.
13. The learned Advocate for the appellants has put-forth the
proposal towards the respondent that the appellants are ready to
hand over the possession of the property and will not ask for the
amount which they have paid earlier and to settle the matter.
14. The respondent is not inclined to accept the said offer and has
stated that as the money decree is challenged by the appellants, it is
necessary to deposit the entire decretal amount. He has placed
reliance on the judgment of the Hon'ble Apex Court in case of M/s
Mehta Teja Singh and Company V/s. Grindlays Bank Limited reported
in (1982) (3) SCC 199 wherein it is held that even a direction to
deposit the part of the decretal amount is not sufficient for grant of
stay in case of money decree. This Court in case of Sau. Aloka
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Jaigopal Biswas V/s. Dalia and another reported in 2018 SCC OnLine
Bom 4051 has observed in paras 5 and 6 as under:-
"5. I have gone through the impugned order and I find
that it does not give any adequate reason for taking such a
lenient view in the matter. After all, what is under challenge
is a money decree and the settled law is that money decree
should not be ordinarily stayed unless some exceptional
reasons are given. Even in the case of Sihor Nagar Palika
Bureau (supra) relied upon by the learned Counsel for
respondent No.1, this principle of law has been stated in
clear terms, when it is observed by the Hon'ble Apex Court
in paragraph 5 thus:
"5.......... Ordinarily, execution of a money decree is not
stayed inasmuch as satisfaction of money decree does
not amount to irreparable injury and in the event of the
appeal being allowed, the remedy of restitution is
always available to the successful party. Still the power
is there, of course, a discretionary power and is meant
to be exercised in appropriate cases."
6. In the case of Malwa Strips Private Limited V/s. Jyoti
Limited, (2009) 2 SCC 426, the Hon'ble Apex Court has
held that even though there is a discretion for staying the
execution of the decree, by imposing suitable conditions, the
discretion must be exercised judiciously. Speaking on the
discretion of the Appellate Court to impose conditions, the
Hon'ble Apex Court said that the provision may not be
mandatory, but the purpose for which the provision has
been inserted must be taken into consideration and an
exceptional case has to be made out for stay of execution of
a money decree. The Hon'ble Apex Court has held that the
question of causing of undue hardship to the respondent
must be appropriately answered by the Court granting stay.
The relevant observations, as they appear in paragraph 14,
of the judgment are reproduced thus:-
"14. Even if the said provision is not mandatory, the
purpose for which such a provision has been inserted
should be taken into consideration. An exceptional case
has to be made out for stay of execution of a money
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decree. The parliamentary intent should have been
given effect to. The High Court has not said that any
exceptional case has been made out. It did not arrive at
the conclusion that it would cause undue hardship to
the respondent if the ordinary rule to direct payment of
the decretal amount or a part of it and/or directly
through the judgment debtor to secure the payment of
the decretal amount is granted. A strong case should be
made out for passing an order of stay of execution of the
decree in its entirety."
15. The appellants have submitted that they have kept their
immovable property with the respondent as a security, there is no
need to deposit the decretal amount as they are having good case, the
property which the plaintiff has sold is in dispute and the title of the
plaintiff is not clear, therefore, the respondent-plaintiff has not
accepted the proposal given by the appellants-defendants.
16. I have considered the judgment of the trial Court. The trial
Court has considered the contents of the documents and order passed
by the Municipal Corporation. The counter claim of the
appellants-defendants is rejected by the trial Court.
17. As the money decree is challenged by the appellants and from
the judgments on which the appellants are relying, it is clear that it is
the discretion of the Court to grant stay against money decree. The
respondent has rightly pointed out that the Hon'ble Apex Court has
observed that the furnishing of surety instead of deposit of amount in
Court can be permitted if the appellants have made out a prima facie
strong case for the hearing of the appeal on the merit.
18. In facts and circumstances of the present case and having taken
into consideration all respective submissions made by both the
parties, it appears that though the sale deed is executed in favour of
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the appellants and they have paid the Municipal Taxes, Mutation
Entry is cancelled and the suit property is in dispute.
19. The appellants have given a fair offer of returning back the
property and is ready not to claim the amount which the appellants
have paid. Said offer is denied by the respondent which makes a
strong prima facie case for appellants. As the Court has to use
discretionary power and the same is meant to be exercised in
appropriate cases, I am satisfied that the prima facie case is made out
to grant stay for execution of decree subject to furnishing bank
guarantee of decretal amount within a period of four weeks.
20. The stay granted by this Court vide order dated 23.8.2024 to
continue till the final disposal of the appeal subject to following
condition.
21. If the appellants fail to furnish bank guarantee within a
stipulated period, the stay shall be automatically vacated.
22. The appeal is expedited.
23. The appellants are directed to file private paper book within a
period of eight weeks from today.
24. List the matter for final disposal after eight weeks.
(MRS.VRUSHALI V.JOSHI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 22/08/2025 17:34:07
