1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.12919 OF 2009 IN FIRST APPEAL NO. 727 OF 2006 Executive Engineer, Osmanabad Minor Irrigation Division, Osmanabad, Through its Sub Divisional Engineer, Nitin s/o Prabhakar Ambure, Age: 46 years, Occ: Service, R/o. Sub Divisional Engineer, Tawarja Project, Sub Division, Bhoom, Dist. Osmanabad. .. Applicant Versus 1. The State of Maharashtra, Through its Collector, Osmanabad. 2. Raghunath s/o Tulsiram Chavan, Age: Major, Occ: Agri., R/o. Ieet, Tq. Bhoom, District Osmanabad. 3. Dadahari s/o Tulshiram Chavan, since died Through his LRs. 4. Sundrabai Tulshiram Chavan, Age: Major, Occ: Household., R/o. Ieet, Tq. Bhoom, Dist. Osmanabad. .. Respondents ... Mr. S.S. Tope, Advocate for applicant. Mr. S.T. Ghute, Advocate for respondent Nos. 2 and 4. ... 2 CORAM : R.G. KETKAR, J. DATE : 14TH DECEMBER, 2009. PER COURT : This application is taken out by appellant No. 2 - the Executive Engineer, Osmanabad Minor Irrigation Division, Osmanabad praying for stay to the execution of the attachment order dated 30-04-2009 passed by the learned Civil Judge, Junior Division, Osmanabad in Special Darkhast No. 24/2009. 2. Heard Shri. S.S. Tope, learned Counsel for the applicant and Shri. S.T. Ghute, learned Counsel for respondent Nos. 2 and 4. 3. First Appeal No. 727 of 2006 was filed by the State of Maharashtra being appellant No.1 and the present applicant, being appellant No.2. The appeal was filed challenging the judgment and award dated 18-02-2006 passed by the Learned 3 Civil Judge, Senior Division, Osmanabad in L.A.R. No. 348/1994. The appellant acquired the land of respondent Nos. 2 and 4 under the Land Acquisition Act, 1894. The lands were acquired for the public purpose of Dokewadi Medium Project. After completing the procedure and formalities, the Land Acquisition Officer made award and awarded compensation of Rs. 11,99,742/-, including solatium and components. The claimants accepted the amount under protest. Against this award, the claimants preferred Application under Section 18 of the Land Acquisition Act, 1894, claiming compensation @ Rs.60,000/- Per Acre as against Rs.32,000/- Per Hector as offered by the Land Acquisition Officer. Reference Court by judgment and award dated 18-02-2006 enhanced compensation @ Rs. 50,000/- Per Acre. As against this decision, the above appeal was filed in 2006. The appeal came up before this Court for admission on 28-03-2008 when the Court admitted the appeal and called for R. & P. 4 4. It is not in dispute that the appellant did not take out application for stay in the appeal. In view of this, it appears that Special Darkhast No. 24/2009 was filed by the respondents - original claimants. Attachment order was passed on 30-04-2009 by the learned Civil Judge, J.D. Osmanabad in the execution proceedings. 5. In support of this applcation, Shri. S.S. Tope, learned Counsel for the applicant submits that the order of 30-04-2009 passed by the Executing Court was received by the applicant on 17-11-2009. The applicant addressed a letter dated 20-11-2009 to the Superintending Engineer, Osmanabad Irrigation Circle, Osmanabad for arranging and approving amount of Rs.17,40,820/- which comprises of interest @15% p.a. for the period from 12-02-1991 to 30-09-2007 to the tune of Rs.11,67,669/-. In Para. 3 of the application, it is averred that the 5 Superintending Engineer, Osmanabad Irrigation Circle issued a letter to the Executive Director, Godawari Marathwada Irrigation Development Corporation, Aurangabad on 30-11-2009 regarding to arrange amount of Rs. 17.40 lacs for paying to the respondents - claimants. The reason for non payment of compensation is that the First Appeal No. 727/2006 is pending before this Court and is admitted. Other reason for non payment is non availability of funds by Irrigation Department, Mantralaya, Mumbai. Since the amount is not sanctioned, the applicant expressed his inability to pay the amount. The applicant has, therefore, prayed for setting aside the execution of attachment order dated 30-04-2009 passed by the Civil Judge, Junior Division, Osmanabad in Special Darkhast No. 24/2009. 6. The impugned judgment and award was passed on 18-02-2006. In the foot note dated 09-06-2006 to the appeal memo, it is set out 6 that the Land Acquisition Officer awarded compensation Rs.1,02,409/- which was enhanced by the Reference Court to Rs.3,30,000/-. The appellants in the appeal did not take out civil application for stay. 7. Order XLI Rule 5 of the Code of Civil Procedure, 1908 lays down that 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. It empowers the Appellate Court to grant stay of execution of the decree for sufficient cause. 8. For the circumstances narrated hereinabove, it is abundantly clear that far from making out any sufficient cause by the applicant, no cause is made out for grant of any interim order. The impugned judgment and order was passed on 7 18-02-2006. The appeal was admitted on 28-03-2008. No application for stay of the impugned judgment and award was moved during this period. It is important to note that order was passed on 30-04-2009 for attaching the properties. The next date of hearing was fixed on 09-06-2009. It is the case of the applicant that the order was served on 17-11-2009, still no attempt was made to move application for stay. The order dated 30-04-2009 passed in Special Darkhast No. 24/2009 is not even the subject matter of the present appeal. Thus, in the circumstances, I am not inclined to grant any interim relief to the applicant. In view of this, no case is made out for grant of any interim order. Hence the Civil Application is rejected. ( R.G. KETKAR, J.) sut/DEC09/ca12919.09