1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4243 OF 2009 Pandit Lotu Patil (Deceased) Through L.Rs. .... PETITIONERS V E R S U S The State of Maharashtra & Others .... RESPONDENTS Mr. A.B.Kale, Counsel for Petitioner. Mr. U.K.Patil, A.G.P. for State. .................. [ CORAM : K.K.TATED, J. ] DATE : 29/7/2009 PER COURT : 1. Rule. Rule returnable forthwith. With the consent of learned counsel for the parties, this Petition is heard finally at admission stage. 2. Heard Mr. A.B. Kale, learned counsel appearing on behalf of 2 petitioner and Mr. U.K.Patil, learned A.G.P. appearing on behalf of State. 3. By this petition under Article 227 of the Constitution of India filed by the petitioners/claimants are challenging the Order dated 21/3/2009 passed by the learned Civil Judge (Sr.Division), Jalgaon below Exh. 1 and application 17 in Regular Darkhast No. 339 of 2002 in L.A.R. No. 604 of 1998, by which the trial Court allowed petitioner to withdraw a sum of Rs. 7,18,654/- (Rupees Seven Lacs Eighteen Thousand Six Hundred Fifty Four only) by furnishing bank guarantee of any Nationalized Bank in the like amount. 4. A few facts of the present case are as under . The Special Land Acquisition Officer issued notice under Section 4 of the Land Acquisition Act for acquiring petitioner’s land for public purpose. After following due process of law, the Special Land Acquisition Officer declared Award dated 17/1/2000 and granted compensation. 5. Being aggrieved by the said Award, the petitioner preferred a Reference and in the said Reference, the Reference Court by Judgment and Award dated 17/1/2000 awarded enhanced compensation. Though the Reference Court enhanced compensation payable to the petitioner, the 3 respondent State failed to pay the same to the petitioner and/or to deposit in trial Court and, therefore, petitioner preferred Regular Darkhast No. 339 of 2002. In the said Regular Darkhast No. 339 of 2002, the respondents deposited sum of Rs. 7,18,654/- (Rupees Seven Lacs Eighteen Thousand Six Hundred Fifty Four only) on 20/2/2009. The learned counsel appearing on behalf of petitioner states that the Respondent State preferred First Appeal against the Judgment and Award dated 17/1/2000 passed by the Civil Judge (Sr.Division), Jalgaon. There was delay on the part of the respondent to prefer First Appeal and, therefore, Respondent preferred Civil Application No. 996 of 2004 was allowed on 9/2/2004 and First Appeal was admitted on 8/6/2009. There is no stay in First Appeal. Therefore, the learned counsel appearing on behalf of petitioner submitted that the impugned order dated 21/3/2009 passed by the Jt. Civil Judge (Sr.Division), Jalgaon in Regular Darkhast No. 339 of 2002 is without jurisdiction and against the natural justice 6. Mr. U.K. Patil, learned A.G.P. appearing on behalf of State supported the order passed by trial Court dated 21/3/2009. He contended that though there was no stay in the First Appeal, the First Appeal was admitted on 8/6/2009 and, therefore, the bank guarantee furnished by the petitioner at the time of withdrawing the amount of Rs. 7,18,654/- (Rupees Seven Lacs Eighteen Thousand Six Hundred Fifty Four only) to 4 continue till the hearing and final disposal of First Appeal. He submitted that the amount involved in the present case is more than Rs. 7,00,000/- and, therefore, the present Writ Petition is liable to be dismissed. 7. It is to be noted that lands of the petitioner in this petition were acquired for public purpose by the Land Acquisition Officer. After the acquisition of the lands, the Award came to be passed by Special Land Acquisition Officer determining the compensation payable to the petitioner. Being dis-satisfied by the Award passed by the Special Land Acquisition Officer, the petitioner preferred Reference under Section 18 of the Land Acquisition Act. In the said Reference, the Reference Court enhanced compensation payable to the petitioner. In spite of Judgment and Award passed by Reference Court, the Respondent failed to pay enhanced compensation to the petitioner and, therefore, petitioner preferred execution application for executing Judgment and Award passed in land acquisition Reference. In the said execution application, the respondent/State of Maharashtra deposited enhanced compensation. Thereafter the petitioner preferred application for withdrawal of the said amount. Though there was no stay in the First Appeal preferred by respondents, the executing Court passed impugned Order directing petitioner to furnish bank guarantee before withdrawing the enhanced compensation. It is to be noted that under Order XLI Rule 5 of the Code 5 of Civil Procedure, an Appeal can not operate as stay of the proceedings under a decree or order unless and until specific order of the stay is passed by the appellate Court. Order XLI Rule 5 of Code of Civil Procedure reads as under : “ Stay by Appellate Court - (1) An Appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree, but the Appellate Court may for sufficient cause order stay of execution of such decree. Explanation - An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay 6 of execution or any order to the contrary, be acted upon by the Court of first instance. (2) Stay by Court which passed the decree – where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) No order for stay of execution shall be made under sub rule (1) or sub rule (2) unless the Court making it is satisfied - (a) that substantial loss may result to the party applying for stay of execution unless the order is made ; (b) that the application has been made without unreasonable delay ; and (c) that security has been given by the 7 applicant for the due performance of such decree or order as may ultimately be binding upon him. (4) [ Subject to the provisions of sub – rule (3), the Court may make an ex-parte order for stay of execution pending the hearing of the application. (5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub rule (3) of rule 1, the Court shall not make an ordr staying the execution of the decree. ] ” 8. In the present case, though the respondents filed First Appeal against the Judgment and Award passed by Reference Court, there is no stay from the High Court for executing the Judgment and Award passed by Reference Court. The Order passed by the Reference Court enhancing compensation payable to the petitioner is in the nature of money decree. Normally, execution of money decree can not be stayed unless and until extra ordinary reasons and/or circumstances pointed out by the Judgment 8 debtor. 9. In view of above facts and circumstances, the petition preferred by the petitioner is allowed in terms of prayer clause B and C, which read as under : “ (B) To quash and set aside the order passed by the learned Joint Civil Judge (Senior Division), Jalgaon dated 17/1/2000 asking for furnishing bank guarantee in Regular Darkhast No. 339 of 2002 and for that purpose issue necessary orders. (C) By issuing appropriate Writ, Order or directions the bank guarantee which is at Exh. ‘ B ’ of this petition furnished by the petitioner in Regular Darkhast No. 339 of 2002 in the Court of Joint Civil Judge, Senior Division, Jalgaon may kindly be order to be revoked and or cancelled. ” 10. No order as to costs. [ K.K.TATED ] JUDGE knp/WP4243.09 9 10 11 12 13 14 15 16 17 18