1 ca4799-08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.4799 OF 2008 IN FIRST APPEAL NO.1822 OF 2008 The Commissioner, Malegaon Municipal Corporation, Malegaon, District Nashik ..Applicant Vs Abdul Aziz Moh. Hanif and others ..Respondents -- Mr.Rahul Kate, for applicant. Mr.Anilkumar Patil, for respondent nos.1 to 18. Mr.V.S.Gokhale, AGP for respondent no.19. -- CORAM : V.C.DAGA & R.G.KETKAR, JJ. DATE : 12 th JANUARY, 2011 P.C: This application is preferred by the appellant in First Appeal No.1822 of 2008. By this application, the applicant – Commissioner, Malegaon Municipal Corporation, Malegaon has prayed for stay to the effect, execution and operation of the impugned judgment and award dated 18 th April, 2008 passed by the learned Ad-hoc District Judge-I, Malegaon in Land Reference No.322 of 2004 (Old LR No.484 of 2003). 2] The opponents (hereinafter referred as “the claimants”) were the 2 ca4799-08.sxw owners of Survey No.95/1 admeasuring 9600 square metres. The said land was reserved for the public purpose of hospital and vegetable market under the provisions of Maharashtra Regional and Town Planning Act, 1966 (for short M.R. & T.P. Act) by the earstwhile Malegaon Municipal Council. Since no steps were taken for acquisition, the claimants issued purchase notice under Section 127 of the M.R. & T.P. Act. Subsequently, they filed Writ Petition No.6134 of 2000 in this Court for declaration that the reservation had lapsed. By order dated 11 th December, 2000, this Court directed the concerned Land Acquisition Officer to complete the land acquisition proceedings and pay the compensation to the claimants preferably within 15 months period from the date of order. Despite the direction of this Court, the then Malegaon Municipal Council did not pay the compensation to the claimants. The claimants approached the Special Land Acquisition Officer for making inquiry in that regard. It is the case of the claimants that the period of 15 months granted by this Court had lapsed and even the statutory period of two years after publication of Notification under Section 6 of the Land Acquisition Act, 1894 (for short “the Act”) also expired. However, no notice under Section 9 of the Act was issued. The acquisition proceedings were not completed by the Special Land Acquisition Officer. The claimants were served with notices under Sections 12(2) of the Act on 30 th June, 2003 informing them that the award was made on 31 st January, 2002 and they should remain present on 15 th July, 2003 for receiving the amount of compensation. The claimants applied for certified copy of the award and filed Reference under Section 18 of the Act for enhancement of compensation. The Special Land Acquisition Officer had worked out market rate at the rate of Rs.340/- per 3 ca4799-08.sxw square metre. By the impugned judgment and award, the learned Ad-hoc District Judge partly allowed the Reference and held that the claimants are entitled to compensation at the rate of Rs.550/- per square metre besides other statutory benefits. It is against this judgment and award, the applicant has preferred the above First Appeal. 3] On 22 nd October, 2008 this Court issued notice on the Civil Application and called for Record and Proceedings of the case so that the matter can be finally disposed of at the stage of admission. In the meanwhile, the execution and operation of the impugned order was stayed provided the award was not executed by that time. The Civil Application along with First Appeal was thereafter listed before this Court on 3 rd February, 2009. The Appeal was admitted and in so far as the Civil Application is concerned, it was adjourned for four weeks and order of ad- interim relief granted earlier was ordered to continue till next date. The Civil Application was listed on 4 th March, 2009 when Rule was issued on it and the same was made returnable after four weeks. Submission was made on behalf of the applicant before this Court that the notices under Section 12(2) of the Act were received by the claimants either on 30 th June, 2003 or 30 th July, 2003 and the Reference under Section 18 of the Act was made on 11 th November, 2003 which was beyond the period of limitation prescribed under Section 18(2) of the Act. It is material to note that the ad-interim order was , however, not continued. 4] The Civil Application was thereafter heard on 3 rd July, 2009 and this Court framed issue as to whether the applicant proves that the Reference 4 ca4799-08.sxw made by the claimants under Section 18(1) of the Act was not within the limitation as set out under Section 18(2) of the Act. The Reference Court was directed to record the findings on the said issue within a period of three months after allowing the parties to adduce the evidence and the findings were ordered to be transmitted to this Court. Pursuant to this direction, the learned Ad-hoc District Judge-1 transmitted the findings recorded in the order dated 24 th August, 2010 on the said issue and came to the conclusion that the applicant has failed to prove that the Reference made by the claimants under Section 18(1) of the Act was not within the limitation as set out under Section 18(2) thereof. 5] In support of this application, we have heard Mr.Rahul Kate, learned counsel for applicant. We have also heard Mr.Anilkumar Patil, learned counsel for respondent nos.1 to 18 (claimants) and Mr.V.S.Gokhale, learned AGP for respondent no.19. 6] Order 41 Rule 5 of the Code of Civil Procedure, 1908 (for short “the CPC”) regulates the grant of stay by the Appellate Court. The width and amplitude of the said provision was considered by one of us (V.C.Daga, J.) in the case of Bhogvati Sahakari Sakhar Karkhana Ltd. Vs. M/s.Chaugule & Sons, AIR 2003 BOMBAY 185. In that case, the Court considered the amending Act being Act 104 of 1976 which came into effect from 1 st February, 1977; the Code of Civil Procedure (Amendment) Bill, 1974 (Bill No.37 of 1974); the report of the Joint Committee submitted to the Loksabha on 1 st April, 1976 as published in Gazette of India; Extraordinary, Part II Section 2 thereof. It was observed in paragraphs no.9 and 10 as 5 ca4799-08.sxw under :- 9. In my view exercise of power under Order 41, Rule 1(3) of C.P.C. is also necessary looking to the amendment made by the Bombay High Court in exercise of its power under Section 122 of C.P.C., whereby; proviso came to be inserted in the said provision. In absence of proviso, the appellate Court had discretion only to grant time to deposit and/or furnish security. Proviso contemplates recording of reasons to dispense with such deposit or security. It is necessary to give purposive construction to the aforesaid provision. The exercise of power under Order 41, Rule 1(3) will curtain one important stage in the litigation i.e. proceedings for execution of the decrees which is bound to reduce the burden of the executing Courts to that extent. Absence of any application under Order 41, Rule 5 of C.P.C. for for stay and absence of any order under Order 41, Rule 1(3) is bound to drive the decree holder to the executing Court to execute the decree. In that event, the executing Court will have no option but to initiate proceedings for execution of the decree, which is bound to take considerable time of the litigants and that of executing Court and also bound to cause strain on the purse of the litigants. In this backdrop, I take the purpose of Order 41, Rule 1(3) is to avoid multiplicity of proceedings i.e. appellant may file only appeal and after it is admitted, then again may apply for stay on account of execution proceedings initiated by the decree holder. In order to arrest tendency to protract litigation and to prevent execution of money decree pending appeal, this provision has been brought on the statute book. 6 ca4799-08.sxw 10. A judicial note, at this stage, can be taken that in our country it is said that it is easy to obtain decree but difficult to execute it. If the power under Order 41, Rule 1(3) of C.P.C. is exercised by the appellate Court, upon prima facie satisfaction; then, in that event, exercise of such power will result in realisation of the fruits of the decree. The provision made under 41, Rule 1(3) of C.P.C. appears to be in public interest with intention to shorten the length and width of the unnecessary litigation and to prevent multiplicity of the proceedings and at the same time to help the decree holder to realise the fruits of the decree obtained by him. This often not used provision needs to be activated and put into operation considering the flooded corridors of the Court which, in my view, would not only serve the ends of justice between the parties but serve the cause of administration of justice. 7] Now, in the present case, the claimants had made a Reference under Section 18 of the Act which was allowed on 18 th April, 2008 by the learned Ad-hoc District Judge-I, Malegaon. The additional issue framed by this Court was also decided in favour of the claimants and the findings recorded to that effect in the order dated 24 th August, 2010 have been transmitted by the learned Judge to this Court. As noted earlier, the claimants had issued purchase notice under Section 127 of the M.R. & T.P. Act to the earstwhile Malegaon Municipal Council. Since neither the land of the claimants was acquired nor the steps as contemplated therein were taken, they filed Writ Petition No.6134 of 2000 in this Court. By order dated 7 ca4799-08.sxw 11 th December, 2000 this Court directed the Land Acquisition Officer to complete the land acquisition proceedings and pay compensation to the claimants preferably within 15 months from the date of order. Despite the direction of this Court, the then Malegaon Municipal Council did not pay the compensation to the claimants. Considering the provisions of Order 41 Rule 5 of the CPC as also the judgment of this Court in the case of Bhogvati Sahakari Sakhar Karkhana Ltd. Vs. M/s.Chaugule & Sons, AIR 2003 BOMBAY 185 (supra) and the conduct by the applicant, in our opinion, this is not a case where absolute stay can be granted. 8] In the result, Rule is made absolute in terms of prayer clause (b). There shall be interim stay to the judgment and award dated 18 th April, 2008 passed by the learned Ad-hoc District Judge-I, Malegaon, on condition that the applicant deposits the entire decretal amount as also costs as awarded under the impugned judgment and award dated 18 th April, 2008 in the Reference Court within a period of eight weeks from today. It is expressly made clear that if the applicant fails to deposit the amount within the stipulated time, the interim order shall stand vacated without further reference to this Court and the claimants will be free to proceed with the execution of the impugned judgment and award. In that event, the pendency of the First Appeal will not preclude to the Executing Court from proceeding further with the execution. Costs in the cause. [R.G.KETKAR, J.] [V.C.DAGA, J.]