1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4283 OF 2009 Surendra s/o Ghansham Barhate, Age: 53 years, Occ: Agril., R/o. Fekri, Tq. Bhusawal, District Jalgaon. .. Petitioner Versus 1. The State of Maharashtra, Through Special Land Acquisition Officer, M.I.W. Jalgaon. 2. The Executive Engineer, National Highway No. 11, Dhule. .. Respondents WITH WRIT PETITION NO. 4284 OF 2009 1. Avasu s/o Damu Bhirud, Age: 73 years, Occ: Agri., 2. Vijay s/o Hari Bhirud, Age: 70 years, Occ: Agril., 3. Laxmibai Hari Bhirud, Age: 60 years, Occ: Agri., 4. Sunanda w/o Dnyandeo Patil, Age: 42 years, Occ: Household., 5. Shobha Nivrutti Patil, Age: 40 years, Occ: Agril., All R/o. Nimbhora, Tq. Bhusawal, District Jalgaon. 2 Through G.P.A. Asaram s/o Avasu Bhirud, Age: 54 years, Occ: Agri., R/o. As above. .. Petitioners Versus 1. The State of Maharashtra, Through Special Land Acquisition Officer, M.I.W (3) Jalgaon. 2. The Executive Engineer, National Highway No.11, Dhule. .. Respondents WITH WRIT PETITION NO. 4285 OF 2009 Ashok s/o Motiram Bonde, Age: 43 years, Occ: Agril., R/o Fekari, Tq. Bhusawal, Dist. Jalgaon. .. Petitioner Versus 1. The State of Maharashtra, Through Special Land Acquisition Officer, M.I.W (1) Jalgaon. 2. The Executive Engineer, National Highway No.11, Dhule. .. Respondents WITH WRIT PETITION NO.4304 OF 2009 Vilas Devidas Kale, Occ: Agri., R/o. Khadgaon, Tq. Jamner, Dist. Jalgaon. .. Petitioner Versus 3 1. The Special Land Acquisition Officer, Jalgaon UTPH-1. 2. Executive Engineer, Waghor Project, Jalgaon. .. Respondents WITH WRIT PETITION NO.4311 OF 2009 Prakash s/o Ghansham Barhate, Age: 67 years, Occ: Agri., R/o. Fekri, Tal. Bhusawal, Dist. Jalgaon. .. Petitioner Versus 1. The State of Maharashtra, Through Special Land Acquisition Officer, M.I.W (I), Jalgaon. 2. The Executive Engineer, National Highway No.11, Dhule. .. Respondents WITH WRIT PETITION NO. 4312 OF 2009 1. Ashok s/o Kisan Bhirud, Age: 53 years, Occ: Agri., 2. Kishor s/o Kishan Bhirud, Age: 50 years, Occ: Agri., Both R/o. Fekri, Tq. Bhusawal, District Jalgaon. .. Petitioners Versus 1. The State of Maharashtra, Through Special Land Acquisition Officer, M.I.W (1), Jalgaon. 2. The Executive Engineer, 4 National Highway No.11, Dhule. .. Respondents WITH WRIT PETITION NO. 4313 OF 2009 Prakash s/o. Ghansham Barhate, Age: 67 years, Occ: Agri., R/o. Fekri, Tq. Bhusawal, District Jalgaon. .. Petitioner Versus 1. The State of Maharashtra, Through Special Land Acquisition Officer, M.I.W.(1), Jalgaon. 2. The Executive Engineer, National Highway No.11, Dhule. .. Respondents ... Mr. C.K. Shinde, Advocate for the petitioners in all Writ Petitions except W.P. No.4304/2009. Mr. A.V. Patil, Advocate holding for Mr. V.D. Gunale, Advocate for the petitioner in Writ Petition No. 4304/2009. Mr. Umakant Patil, A.G.P. for State-respondents. ... CORAM : K.K. TATED, J. DATE : 31st JULY, 2009. ORAL JUDGMENT : 1. Rule. Rule returnable forthwith. With the consent of all the parties, these writ petitions 5 are taken up for final hearing at the stage of admission itself. Notice issued to respondent No. 2 in W.P. No. 4304/2009 is not received but considering the facts in the present case, presence of respondent NO.2 is not necessary. 2. Heard learned Counsel for the petitioners and learned A.G.P. for respondent Nos.1 and 2. All these Writ Petitions can be disposed of by common Judgment, as a common question of law and facts are involved in these Petitions. 3. By these Writ Petitions under Article 227 of the Constitution of India, the petitioners are challenging the order passed by the Executing Court in Regular Darkhast directing the petitioners to furnish the bank guarantee at the time of withdrawal of amount in Land Acquisition Cases. 4. The Special Land Acquisition Officer issued notification under Section 4 of the Land 6 Acquisition Act for acquiring petitioners' lands for the public purpose and after following due process of law, passed the award. Being aggrieved by the said award, the petitioners preferred Reference under Section 18 of the Land Acquisition Act and in those References, the Reference Court by judgment and award granted enhanced compensation to the petitioners. As per award passed by the Reference Court, the respondents - State failed to pay enhanced compensation to the petitioners - original claimants, they preferred Regular Darkhasts for executing the judgment and award passed by the Reference Court. In the said Regular Darkhasts, the respondents - State appeared and deposited the decretal amount. Thereafter, the petitioners preferred application for withdrawal of the said amount and at that time, the Reference Court passed impugned order dated 30-03-2009 allowing the petitioners to withdraw the said amount deposited by the respondents on furnishing bank guarantee of any nationalised bank in the like 7 amount. Thereafter, the petitioners furnished bank guarantee and withdrawn the said amount. 5. It is the case of the petitioners that the Executing Courts have no power to impose conditions for furnishing bank guarantee for withdrawal of the amount of enhanced compensation. Learned Counsel appearing on behalf of the petitioners states that the respondents - State preferred following First appeals against the judgment and award passed by the Reference Court. Writ Petition Nos. Petitioner's name L.A.R. Nos. First Appeal St. Nos. 4283/2009 Surendra Barhate 68/2002 17469/2008 4284/2009 Avsu Damu Bhirud 64/2002 17464/2008 4285/2009 Ashok Motiram Bonde 65/2002 17451/2008 4311/2009 Prakash Barhate 67/2002 17495/2008 4312/2009 Ashok Bhirud 71/2002 17471/2008 4313/2009 Prakash Barhate 62/2002 17457/2008 6. Though the respondents - State filed First 8 Appeals, same were delayed and therefore, Civil Applications for condonation of delay are pending in all these first appeals. The learned Counsel appearing on behalf of the petitioners further pointed out that the respondents -State have not filed any application for stay of the impugned judgment and award Land Acquisition References and therefore, the conditions imposed by the Executing Court are against the justice, equity and good conscience and are liable to be set aside. 7. In support of his contention, the learned Counsel appearing on behalf of the petitioners relied on order dated 08-04-2005 passed by this Court in Writ Petition No.774 of 2005 and other connected matters. In this case, this Court ( Coram : A.B. Naik,J.) held that in the pending appeals, the State Government cannot get a stay to the impugned orders. Learned Counsel appearing on behalf of the petitioners mainly relied on following passage from the said order 9 dated 08-04-2005, which reads as under. "Be it as may, the grievance of all the petitioners in this petition is that the executing court while permitting the petitioners to withdraw the amount as determined by the learned Civil Judge in Reference, the Executing Court asked to furnish bank guarantee from the claimants Decree holders. The decree holder as per the directions of executing Court have furnished bank guarantee. As per the chart produced on record today, it is evident that the State Government has filed appeals against the judgment and order of reference court. This court has admitted some appeals and some appeals are still pending for admission. In the pending appeal the State Government has not applied for any interim relief. In view of this position, keeping the bank guarantee alive will not be just and proper. This Court on in similar situations has directed the Civil Court / Executing Court to revoke / release the bank guarantee given by claimant. Following the same path, I direct the Civil / Executing Court to discharge / revoke the bank guarantee. In view of the fact that this Court has admitted 10 the appeals, hence the petitioners have to file undertaking before the executing court giving undertaking that in case the judgment of the civil court is reversed / modified in appeal by this Court they shall return back the amount as per the judgment and order of this court. In view of this aspect and in identical matters i.e. W.P. No.6086/2004 on 19th October, 2004 had passed similar orders by directing the petitioners to file an undertaking before the executing court and, thereby directing the executing court to discharge the bank guarantee which was given by the petitioner / claimants." 8. On the other hand, learned A.G.P. appearing on behalf of the respondents - State supported the order passed by the executing court. He submitted that the State of Maharashtra preferred first appeals in these Land Acquisition References and the said appeals are pending. In view of the pendency of first appeals, the petitioners - original claimants 11 are not entitled to withdraw the amount deposited by them, without furnishing any security. He submitted that the compensation awarded by the Reference Court in these cases is on higher side and therefore, before allowing the petitioners to withdraw the amount deposited by them, they should furnish security to the satisfaction of the trial Court and that the trial Court has rightly passed the impugned order in the present case. He submitted that in view of Order 21 Rule 26 of the Code of Civil Procedure, the executing Court can stay execution on certain terms and conditions. Order 21 Rule 26 of the Code of Civil Procedure reads as under. "26. When Court may stay execution.-(1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in 12 respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto. (2) Where the property or person of the judgment debtor has been seized under an execution, the Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application. (3) Power to require security from, or impose conditions upon, judgment debtor.-Before making an order to stay execution or for the restitution of property or the discharge of the judgment debtor, the Court shall require such security from, or impose such conditions upon, the judgment debtor as it thinks fit." 9. He submitted that it is crystal clear from Order 21 Rule 26 of the Code of Civil Procedure that the Executing Court can impose conditions at the time of hearing execution applications. 13 In support of his contentions, he relied on authority in the matter of Kum. R. Komala vs. Mohammed Iqbal, reported in A.I.R. 1999 Karnataka, 337. In that case, Karnataka High Court held that under Order 21 Rule 26 of the Code of Civil Procedure, the executing Court can grant stay for limited purpose to enable the judgment debtor to apply for stay order from appellate Court. Para 6 of the said judgment reads as under. "6. Rule 26(1) only relates to granting of limited stay of execution by execution Court and for only specific purpose as to enable the judgment debtor to apply for stay order from the appellate Court or from the trial Court which passed the decree or for suitable orders. It has not been the case of the revision applicant that he wanted time to obtain stay order from any Court. That being the position, Rule 26(1) is of no assistance to the revision petitioner nor can it be said that the Court below in any manner acted illegally in ordering execution. Revision 14 is dismissed." 10. It is clear that under Order 21 Rule 26 of the Code of Civil Procedure, the Executing Court can grant stay for limited purpose to enable the judgment debtor to apply for stay from the appellate Court. In the present case, the respondents have not filed any application in Executing Court that they wanted to move before High Court for stay and for that purpose, some time might be granted. On the other hand, the trial Court in order dated 30-03-2009, in Execution Application stated that " As per the say of J.D. / State it is submitted that First Appeal No. 17469/2008 is preferred in the Hon'ble High Court, Aurangabad but there is no information available about the stay to the proceeding, and therefore, the amount be released on obtaining bank guarantee from the D.H." It is crystal clear that instead of applying for some time, the learned A.G.P. appeared on behalf of the State before the 15 Executing Court, made a statement that the amount might be released in favour of the petitioners on obtaining bank guarantee. This itself shows that the provisions of Order 21 Rule 26 of the Code of Civil Procedure cannot be made applicable in the present case. 11. Learned A.G.P. appearing on behalf of the respondents - State also relied on the judgment in the matter of Shaukat Hussain @ Ali Akram and others vs. Smt. Bhuneshwari Devi (dead) by L. Rs. and others, reported in A.I.R. 1973 Supreme Court, 528. In this case also, the Apex Court held that under Order 21 Rule 26 to 29 of the Code of Civil Procedure, the judgment debtor may make application to the Executing Court to seek time to approach the higher Court. Para6 of this authority reads as under. " 6. Order XXI, CPC deals generally with the execution of decrees and orders. That order is divided into several topics, each 16 topic containing a number of rules. The first four topics cover rules 1 to 25 and the fifth topic, namely, stay of execution comprises 4 rules, namely, rules 26 to 29. A perusal of these rules will show that the first three rules i.e. rules 26 to 28 deal with the powers and duties of a court to which decree has been sent for execution. Under rule 26, that court can stay the execution of the decree transferred to it for execution for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed or to any court having appellate jurisdiction over the former for an order to stay execution or for any other order relating to the decree or execution which might have been made by the court of first instance or the appellate court. It will be seen, therefore, that under rule 26 the transferee court has a limited power to stay execution before it. Moreover, under sub-rule (2) if any property is seized by it in the course of execution, it may even order the restitution of the property pending the result of the application made by the judgment-debtor to the court of the first instance or to the appellate court. Rule 27 says that any such restitution made under sub-rule (2) of rule 26 will not prevent the property of the judgment-debtor from being retaken in execution of the decree sent for execution. Rule 28 provides that any order of the court by which the decree was passed, in relation to the execution of such decree, shall be binding upon the court to which the decree was sent for execution. And 17 then we have rule 29 which deals with a different situation. The rule is as follows : " Where a suit is pending in any court against the holder of a decree of such court, on the part of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided." It is obvious from a mere perusal of the rule that there should be simultaneously two proceedings in one court. One is the proceeding in execution at the instance of the decree-holder against the judgment- debtor and the other a suit at the, instance of the judgment-debtor against the decree-holder. That is a condition under which the court in which the suit is pending may stay the execution before it. If that was the only condition, Mr. Chagla would be right in his contention, because admittedly there was a proceeding in execution by the decree-holder against the judgment-debtor in the court of Munsif 1st Gaya and there was also a suit at the instance of the judgment- debtor against the decree holder in that court. But there is a snag in that rule. It is not enough that there is a suit pending by the judgment- debtor, it is further necessary that the suit must be against the holder of a decree of such court. The words "such court" are important. "Such court" means in the context of that rule the court in which the suit is pending. In other words, the suit must be one not only pending in that court but also one against the holder of a decree of that court. That appears to be the plain meaning of the rule." 18 This authority is not applicable in the facts and circumstances of the present case because the respondents have not filed application before the trial Court under Order 21 Rule 26 of the Code of Civil Procedure seeking some time to approach High Court for obtaining stay. 12. Learned A.G.P. also relied on the judgment in the matter of Central Bank of India vs. State of Gujarat and others reported in (1987) 4 Supreme Court Cases 407. He mainly relied on Para 5 and 6 of this judgment, which read as under. "5. In the absence of an order of stay the decree was executable and the judgment- debtor deposited the decretal dues in the Executing Court. Once the decretal dues had come into the executing court there was indeed no justification for the direction to refund the same to the judgment-debtor. On the other hand, the High Court could in its discretion either 19 direct payment of the amount to the decree-holder subject to terms safeguarding the interest of the judgment-debtor in the eventuality of reversal of the decree or direct the amount to be deposited or invested on terms of interest so that on the disposal of the First Appeal appropriate directions could be given." 6. In the impugned order which in the setting of the matter appears to be long one, the High Court has referred to many aspects which perhaps were not necessary but we do not propose to go into the same. We allow the appeal, reverse the order of refund and direct that the amount shall be paid to the decree-holder subject to the condition that in the event of the decree of the trial court being reversed the appellant-Bank would redeposit the amount in the executing court within two weeks of the date of the reversal along with 18 per cent of interest on the amount from the date the money is withdrawn till the date of depositing. The appellant is a nationalised bank and we see no justification to demand any security from it. There will be no order for costs." 13. Considering this authority, I do not find 20 any substance in the submission of learned A.G.P. appearing on behalf of the respondents that the trial Court has rightly imposed condition of furnishing bank guarantee for withdrawal of the decretal amount. 14. In view of the above mentioned facts and circumstances, it is crystal clear that the Executing Court passed the impugned order without considering the authorities cited before him. 15. It is to be noted that lands of the Petitioners in these Petitions were acquired for various projects by the land acquisition officer. After the acquisition of the lands, the award came to be passed on various dates by the S.L.A.O. by determining the compensation payable to the Petitioners. Being dissatisfied by the award passed by the S.L.A.O. the Petitioners preferred Reference under Section 18 of the Land Acquisition Act. In all those References, the Reference Court enhanced the 21 compensation payable to the Petitioners. When all these Petitioners filed execution applications in the Reference Court for executing award passed in land acquisition references, an order was passed by the learned executing Court directing the Petitioners to furnish Bank Guarantee as a condition precedent for withdrawal of the amount. It is to be noted that under Order 41 Rule 5 of the Code of Civil Procedure, an Appeal cannot operate as stay of the proceeding under a decree or order unless and until specific order of the stay is passed by the appellate Court. Order 41 Rule 5 of the Code of Civil Procedure reads as under: "Order 41 Rule 5- Stay by Appellate Court - (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so faf 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. 22 [Explanation- An order by the Appellate Court for the say 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 say 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 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 23 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 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 order staying the execution of the decree.]" 24 16. In the present case, though the Respondents filed First Appeals against the Judgment and award passed by the Reference Court, there is no stay from the High Court for executing the Judgment and award passed by the Reference Court. 17. In view of the above mentioned facts and circumstances, I direct the Civil / Executing Court to discharge / revoke the bank guarantee furnished by the petitioners. In view of the fact that the respondents - State filed first appeal against the judgment and award passed by the Reference Court and same are pending for admission, the petitioners have to file undertakings before the Executing Court giving undertaking that in case the judgment of the Civil Court is reversed / modified in appeal by this Court, they shall return the amount as per judgment and award of this Court. 25 18. In view of these facts and circumstances, Writ Petition Nos. 4283/2009, 4284/2009, 4285/2009, 4311/2009, 4312/2009 and 4313/2009 are allowed in terms of prayer Clause - B and C, and Writ Petition No. 4304/2009 is allowed in terms of prayer clause-B, which read as under. Writ Petition No. 4283 of 2009 "(B) By issue of appropriate writ or order, the bank guarantee (Exh.B) furnished by the petitioner in the sum of Rs.15,29,029/- in Regular