1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7690 OF 2009 1) Manubai W/o Raosaheb Kawade Died (L.Rs.) 2) Subhash S/o Raosaheb Kawade, Age 57 years, Occu. Agri. R/o Kanherwadi, Tq. Kallam District :- Osmanabad. 3) Ankush S/o Raosaheb Kawade, Age 59 years, Occu. Agri. R/o as above. 4) Ashok S/o Raosaheb Kawade, Age 55 years, Occu. Agri. R/o as above. 5) Bhagirathibai @ Kaveribai W/o Tukaram Age 62 years, Occu. Household, R/o Massa (kh.), Taluka Kallam, District Osmanabad. 6) Mathurabai @ Vimalbai W/o Ramrao Madke, Age 64 years, Occu. Household, R/o Moha, Taluka Kallam, District Osmanabad. 7) Sushilabai W/o Baliram Bhore, Age 43 years, Occu. Household, R/o Nagulgaon, Taluka Kallam, District Osmanabad. 8) Kaushalyabai W/o Dadasaheb Madake, age 41 years, Occu. Household, r/o Pimpalgaon (Kothwala), Taluka Kallam, District Osmanabad. Through General Power of Attorney Tukaram S/o Sopan Warpe, Age 70 yers, Occu. Agri., R/o Massa(kh.), Taluka Kallam, District Osmanabad. ....Petitioners. 2 Versus 1] The State of Maharashtra, through the Collector, Osmanabad. (Copy to be served on Government Pleader High Court of Judicature of Bombay Bench at Aurangabad.) 2] The Special Land Acquisition Officer No. 2, Minor Irrigation Tank, Osmanabad. 3] Namdev S/o Tukaram Jagtap ( died his L.Rs.) 3A) Bhagwat S/o Namdeo Jagtap, Age 77 years, Occu. Agri. R/o Palsingan, Taluka and Ditrict Osmanabad. 3B) Shivaji S/o Namdeo Jagtap, Age 61 years, Occu. Agri. R/o as above. 3C) Harishchandra S/o Namdeo Jagtap, Age 58 yers, Occu. Agri. R/o as above. 3D) Sou. Chandrakala W/o Shivaji Lakhe, Age 67 years, Occu. Household, R/o Lakhangaon, Taluka Kallam, District Osmanabad. 3E) Sou. Dropadabai W/o Pandurang Shinde, Age 68 years, Occu. Household, R/o Londhewadi, Taluka Kallam, District Osmanabad. 3F) Sou. Panchafulabai W/o Bhausaheb Akhade, Age 71 years, Occu. Household, R/o Pargaon, Taluka Bhoom, District Osmanabad. 3G) Shivaji S/o Ajayrao Hatole, Age 37 years, Occu. Agri, R/o Chumpuri, Taluka Ambad, 3 District Jalna. 3H) Bharat S/o Ajayrao Hatole, Age 34 years, Occu. Agri. R/o as above. 4) Narsappa S/o Vithal Kawade, (died his L.Rs.) 4A) Dwarkabai W/o Shankarrao Ware, Age 65 years, Occu. Household, R/o Pathansangvi, Taluka Bhoom, District Osmanabad. 4B) Bachubai W/o Sandipan Jadhav, Age 57 years, Occu. Household, R/o Kanherwadi, Taluka Kallam, District Osmanabad. 4C) Godawari W/o Haribhau Shinde, Age 53 years, Occu. Household, R/o Bavi, Taluka Kallam, District Osmanabad. 4D) Malanbai W/o Mahadev Pingale, Age 45 years, Occu. Household, r/o Chare, Taluka Barshi, District Osmanabad. 5) Vikram S/o Narsappa Kawade, Age 48 years, Occu. Agri, R/o Kanherwadi, Taluka Kallam, District Osmanabad. 6) Maruti W/o Narsappa Kawade, Age 45 years, Occu. Agri, R/o as above. 7) Rajendra Narsappa Kawade, Age 43 years, Occu. Agri., R/o as above ....Respondents. ------ Shri S.G. Chapalgaonkar, Advocate for petitioners. Shri D.R. Kale, A.G.P. for respondent Nos. 1 & 2. Shri V.D. Salunke, Advocate for respondent Nos. 3-A to 3-H. 4 Shri S.B. Talekar, Advocate for respondent Nos. 4-A to 4-D and 5 to 7. ------ CORAM : R.K. DESHPANDE, J. DATE : 07th July, 2010. ORAL JUDGMENT : 1. This Writ Petition preferred by the original defendant Nos. 3 to 10, challenging the order dated 03/11/2009 passed below Exh. 53 in R.C.A. No. 189 of 2007 by the learned District Judge, Osmanabad. By the order impugned, it has been held that the petitioners have failed to show the compliance of the said order dated 03/11/2009, as per order 41 Rule 5 in from No. 2 & 3 of schedule in Appendix to the Code of Civil Procedure. The compliance has therefore, not been accepted. As a result, of this order the conditional stay granted by the Appellate Court on 03/07/2009 stands vacated. 2. Notice in this matter was issued to the respondents on 13/04/2010 and interim relief granted in terms of prayer clause ‘C’. As a result, the execution of judgment and decree passed by the Trial Court on 27/06/2007 in Regular Civil Suit No. 109/1995 has been stayed. 3. Shri V.D. Salunke, learned counsel appears for the 5 respondent Nos. 3-A to 3-H, whereas Shri S.B. Talekar appears for respondent Nos. 4—A to 4-D and respondent No. 5 to 7, and learned A.G.P. appears for respondent Nos. 1 & 2. All other parties are served, however, none appears for them. This Court has issued notice in this matter on 13/04/2010 and it was not the order of notice before admission and hence the matter stands admitted, and hence it is not necessary to issue a fresh notice for final disposal of the matter. By consent of learned counsel appearing for the parties, the matter is heard finally. 4. The learned Civil Judge Senior Division, Osmanabad passed a decree in Regular Civil Suit No. 109 of 1995 on 27/06/2007. The plaintiffs are declared to be the owners of the property and are held entitled to recover compensation amount of Rs. 34,200/- from the defendant Nos. 3 to 10 along-with interest @ 12% per annum from 17-09-1996, till the realisation of the amount. 5. The afore said judgment and decree is the subject matter of the challenge in Regular Civil Suit No. 189/2007, filed by the petitioners who are the original defendant Nos. 3 to 10, against whom decree in question operates. Along-with appeal, an application under order 41 Rule 5 of Civil Procedure Code, for grant of stay to the execution of the money decree has been filed. It was stated in the application Ex. 51 that in Regular Civil Suit No. 189/2007, the amount 6 recoverable as per the order, is worth of Rs. 84,000/- and without admitting the same the appellants are ready to furnish surety of Rs. One lakh to secure the claim. The Appellate Court allowed this application by an order dated 3/11/2009, subject to furnishing surety of Rs. One lakh within 8 days. The Lower Court was further directed to inform after compliance. 6. The defendant Nos. 3 to 10 alleged that they have submitted surety of Rs. One lakh of one Mahdukar Tukaram Warpe, R/o Massa, Tq. Kalamb. The solvent certificate of the said surety was furnished showing the value of the property owned by the surety at Rs. One lakh and eight five thousand. The Tahasildar, Kalamb, however, certified that the said surety Shri Madhukar T. Warpe R/o Massa, Tq. Kalamb is solvent to the extent of an amount of Rs. 99,000/-. All these documents were filed along with affidavit dated 10/07/2009, stating on that the solvency certificate for an amount of Rs. One lakh eighty five thousand. Accordingly, application Ex. 53 was also filed for accepting the compliance. 7. The Appellate Court passed an order on 03/11/2009 holding that the conditions as per order 41 Rule 5 have not been complied with and hence, rejected the surety. It is order, this order which is the subject matter in the instant Writ Petition. 7 8. Shri Chapalgaonkar, learned counsel appearing for the petitioner has urged that Appellate Court erred in holding that there was no compliance of Order 41 Rule 5. According to him, he had furnished surety in the prescribed form of one Madhukar Tukaram Warpe along- with solvency certificate dated 10/07/2009 showing the value of the property owned by the said surety of Rs. 1,85,000/-. He submits that the Tahasildar, Kalamb while certifying the solvency, has stated that said Shri Madhukar Tukaram Warpe is solvent to the extent of Rs. 99,000/-. According to him, the Tahasildar, Kalamb had no authority to issue the certificate, certifying the solvency beyond Rs. 99,000/- and hence although, the value of the property owned by the surety is of Rs. 1,85,000/- as stated in the solvency certificate, the Tahasildar, Kalamb has stated that said Shri Mahdukar Tukaram Warpe solvent to the extent of Rs. 99,000/-. According to him, the Appellate Court ought to have accepted as due compliance of the order passed on 02/07/2009, by the Court under Order 41 Rule 5 of Civil Produced Code. 9. Shri V.D. Salunke, the learned counsel appearing for the respondent Nos. 3-A to 3-H and Shri Talekar, learned counsel appearing for respondent Nos. 4-A to 4-D and respondent Nos. 5 to 7, opposed the contention raised by Shri Chapalgaonkar and urged that false affidavit filed by the surety Madhukar Tukaram Warpe, stating that solvency certificate is for an amount of Rs. 1,85,000/- and hence, the Appellate Court has rightly rejected the compliance. The learned counsels further 8 urged that the certificate issued by Tahasildar, Kalamb, clearly shows that the surety is solvent only to the extent of Rs. 99,000/- and not beyond that. According to them, as per the condition, the said certificate should have shown that the surety is solvent to the extent of Rs. One lakh and in the absence of this, the Appellate Court has rightly rejected the compliance. 10. After hearing the learned counsels for the parties and after going through the orders passed by the Court below on 03/07/2009 and 03/11/2009, and the documents placed on record i.e. solvency certificate of surety and the certificate issue by the Tahasildar, Kalamb, I am of the view that the Appellate Court has has committed an error in holding that the compliance as prayed is not accepted. The condition was for furnishing surety of Rs. One lakh. The surety has been of one Mahdukar Tukaram Warpe is for an amount of Rs. One lakh, which is in the prescribed form. The solvency certificate issued dated 10/07/2009, indicate the value of the property of the surety to the extent of Rs. 1,85,000/- as stated by the Appellate Court. So far as, the certificate issued by the Tahasildar, Kalamb is concerned, it merely states that Shri Madhukar Tukaram Warpe is solvent to the extent of Rs. 99,000/-. May be that, technically he was not authorised to issue certificate for an amount of Rs. One lakh or above, there is substantial compliance of the order of the stay and hence, it cannot be said that the petitioners / defendants failed to comply with the said order. 9 11. Shri Chapalgaonkar, learned counsel for the petitioners voluntarily offered to deposit Rs. 10,000/- in the Appellate Court, so that further assurance is given in respect of compliance. The same is accepted. The petitioner shall deposit an amount of Rs. 10,000/- (Rs. Ten thousand ) in the Appellate Court Upon such deposit the appellate shall be deposit in any Nationalised bank, initially, for a period three years and to renew thereafter on year to year basis. The said deposit shall be subject to further orders of the Appellate Court. 12. In the result, the instant Writ Petition succeeds, the order dated 03/11/2009 passed below Exh. 53 in Regular Civil Appeal No. 184/2007, by the learned District Judge-2, Osmanabad is hereby quashed and set aside. It is held that there is compliance of the condition of order dated 03/07/2009 passed by the Appellate Court and hence stay shall operate pending decision of appeal. Rule is made absolute as no order as to costs. [ R.K. DESHPANDE, J. ] SDM*7690.09WP(J)