- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO. 633 OF 2009. Shri Naguesh S. Verlekar, Major of age, Advocate, Residing behind Don Bosco Technical Institute, Near Mahalaxmi Building, Fatorda, Salcete-Goa. …....... Petitioner. Versus Shri Rajiv Mathew, r/o H. No. 135, Pilliem, Sanquem-Goa. …....... Respondent. Mr. R. G. Ramani, Advocate for the Petitioner. Mr. V. Menezes, Advocate for Respondent. CORAM :- A. P. LAVANDE, J. Reserved on: 19th April, 2011. Pronounced on:26th April, 2011. JUDGMENT : Heard Mr. R. G. Ramani, learned Advocate for the petitioner and Mr. V. Menezes, learned Advocate for the respondent. - 2 - 2. Rule. By consent heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioner/decree holder challenges the order dated 4.7.2009 passed by Civil Judge, Junior Division, Sanquem in Execution Application No. 1/2007 by which Executing Court has stayed the Execution Application no.1/2007 filed by the petitioner on certain terms and conditions. 4. Petitioner herein filed Regular Civil Suit No. 1/2003 in the Court of Civil Judge Junior Division, Sanguem, against the respondent/defendant seeking recovery of possession of house no. 135 situated at village Pilliem, Dharbandora, Sanquem and recovery of an amount of Rs.39,000/- and mesne profit at the rate of Rs.3000/- per month. An ex-parte decree dated 25.4.2003 was passed against the defendant. 5. Thereafter petitioner/decree holder filed Execution Application no. 1/2007 for execution of the said decree. The - 3 - Judgment debtor filed an application dated 13.4.2009 stating therein that the judgment debtor has been residing in house no. 137 and house no. 135 does not belong to decree holder. According to the Judgment debtor he had filed Regular Civil Suit no. 40/2007 challenging the said decree on various grounds and therefore the judgment debtor sought dismissal of the execution application. The Executing Court by impugned order dated 4.7.2009 stayed the Execution Application no. 1/2007 till the pendency of Regular Civil Suit no. 40/2007 on following conditions:- i. Judgment debtor is restrained from transferring the title, possession to third person of Air compressor and chairs till further orders, ii. Judgment debtor is directed to deposit Rs.1,500/- every month before the Court on or before 10th of every month until further order. 6. Mr. Ramani, learned Counsel for the petitioner submits that the Executing Court could not have granted stay of decree passed in Regular Civil Suit no. 1/2003 without putting the respondent to terms i.e without calling upon the respondent to - 4 - deposit the entire decreetal amount. Learned Counsel further submits that in terms of decree, judgment debtor is liable to pay an amount of Rs.3,000/- per month and therefore the direction given by the Executing Court to deposit only Rs.1500/- every month is unsustainable in law. He further submits that Executing Court has not even mentioned the period from which the said deposit is to be made by the Judgment debtor. According to learned Counsel in terms of agreement dated 1.8.2001 entered into between decree holder and the judgment debtor, judgment debtor is liable to pay Rs.3,000/- per month after the termination of the licence and as such the impugned order to the extent it directs the judgment debtor to deposit Rs. 1500/- instead of Rs.3000/- per month is patently unsustainable in law. 7. Per contra, Mr. Menezes, learned Counsel for the respondent submitted that impugned order passed by the Executing Court is legal and no jurisdictional error has been committed by the Executing Court while passing the impugned Order. He further submitted that Executing Court has restrained the judgment debtor from transferring air compressor and the chairs existing in - 5 - the suit premises and as such interest of decree holder is protected. In so far as the direction to judgment debtor to deposit Rs.1500/- every month is concerned Mr. Menezes submitted that in terms of the agreement the judgment debtor had to pay Rs.1000/- per month as licence fees and in terms of the agreement the judgment debtor was liable to pay Rs.3000/- by way of damages on the expiry or termination of the agreement and as such it cannot be said that the decree holder is entitled to recover Rs.3000/- per month from the judgment debtor. 8. I have carefully considered the rival submissions and perused the record. 9. Indisputably, the suit is filed by the respondent/ judgment debtor challenging the decree of which execution is sought is pending adjudication. In terms of the decree which is sought to be executed the respondent/judgment debtor was directed to pay an amount of Rs.39,000/- therefore it would be just and proper to direct the judgment debtor to furnish security to the extent of Rs.39,000/- to the satisfaction of the Executing Court - 6 - since the decree has been already passed directing the judgment debtor to pay an amount of Rs.39,000/- to the decree holder. It would be just and proper to secure the decree holder for said amount. The judgment debtor is, therefore, directed to furnish security for the amount of Rs.39,000/- to the satisfaction of Executing Court. Since the security is being directed to be given by the judgment debtor for the said amount the order dated 4.7.3009 passed by the Executing Court restraining judgment debtor from transferring the title and possession of air compressor and chairs stands vacated subject to the judgment debtor furnishing security for the said amount. Judgment debtor is granted time of eight weeks to furnish security before the Executing Court. 10. In so far as the direction to deposit Rs.1500/- every month is concerned Mr. Ramani has made grievance that Executing Court has not mentioned the month from which the said amount was to be deposited. The respondent/ judgment debtor is directed to deposit an amount of Rs.1500/- per month from May, 2003 since Regular Civil Suit No. 1/2003 was disposed on 25.4.2003. The judgment debtor is granted time of eight weeks to - 7 - deposit the said amount if not already deposited. The respondent shall continue to deposit the said amount on or before 10th of every month till the disposal of Regular Civil Suit No. 40/2007. I do not find any merit in the submission of Mr. Ramani that Judgment debtor should be called upon to deposit Rs.3000/- per month in view of the agreement dated 1.8.2001. It is pertinent to note that the said agreement provides for payment of Rs.3000/- per month by way of damages in the event of termination of agreement. Since stipulation for payment of Rs.3000/- per month is by way of damages it would not be just and proper to direct the judgment debtor to deposit Rs.3000/- every month at this stage. 11. Rule is partly made absolute in aforesaid terms with no order as to costs. A. P. LAVANDE, J. vn*