1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4103 OF 2009 Kapurchand S/o Mansing Chavan .... PETITIONER V E R S U S The State of Maharashtra and others. .... RESPONDENTS Mr. Mukul Kulkarni, Counsel for Petitioner. Smt. S.S. Autade, A.G.P. for State. .................... [ CORAM : K.K.TATED, J. ] DATE : 03/08/2009 PER COURT : 1. Rule. Rule made returnable forthwith. By the consent of parties, matter was kept for final hearing as per Order dated 2/7/2009. 2 2. Heard Mr. Mukul Kulkarni, learned counsel appearing on behalf of petitioner and Smt. S.S. Autade, learned A.G.P. for State. 2. By this petition under Article 227 of the Constitution of India, Petitioner is challenging the Order dated 28/04/2009 passed by the Civil Judge (Sr.Division), Aurangabad below Exh. 5 in Regular Darkhast No. 278 of 2005. 3. A few facts of the matter are as under : The Special Land Acquisition Officer issued Notification under Section 4 of the Land Acquisition Act for acquiring petitioner’s land for the purpose of construction of Pazar Talav at village Amba, Tq. Kannad, Dist. Aurangabad. After following due process of law, the Special Land Acquisition Officer declared Award dated 15/12/1988 and awarded compensation in respect of acquired land. Being aggrieved by the said Award, the petitioner preferred Reference under Section 18 of the Land Acquisition Act and in the same Reference, the Reference Court passed Judgment and Award dated 22/12/1999 and awarded enhanced compensation in respect of acquired land. As the Respondent failed to comply the order dated 22/12/1999 passed by the Reference Court, the 3 petitioner preferred Regular Darkhast No. 278 of 2005. In the said Regular Darkhast, the respondent filed Say dated 9/4/2009. In the said reply, Assistant Government Pleader, Aurangabad specifically stated that “ Our office had called say of the concerned Land Acquisition Officer on the application of the withdrawal of decreetal amount filed by Decree Holder vide O. NO. 168, 181 dated 21/3 and 30/3, but same is not replied up-till-now by them. Therefore, this J.D.-1/State has no current knowledge of the Appeal. Stay/order pending before the Hon’ble High Court, Aurangabad. ” 4. In the said Regular Darkhast proceeding, the respondent deposited sum of Rs. 5,89,620/- (Rupees Five Lacs Eighty Nine Thousand Six Hundred Twenty only). Considering the Say filed by the respondent, the executing Court passed following order : “ The amount of Rs. 5,89,620/- be given to the D.H./Claimant Kapoorchand S/o Mansing Chavan, on furnishing bank guarantee, which will be continued till the decision of the appeal and also on verifying the said amount by Nazir as per award.” 4 5. Thereafter the petitioner furnished the bank guarantee issued by the Branch Manager, Corporation Bank, branch Jalgaon for the sum of Rs. 5,89,620/- (Rupees Five Lacs Eighty Nine Thousand Six Hundred Twenty only). Thereafter, the executing Court passed order on 7/5/2009 and directed office to verify the said bank guarantee from the concerned bank. 6. Learned A.G.P. on behalf of respondent vehemently opposed the present Writ Petition on the ground that the respondent – State has already preferred First Appeal No. 2438 of 2008 and the same is admitted on 2/5/2009 against the Judgment and Decree passed by the Reference Court in L.A.R. No. 238 of 1991. The learned A.G.P. submits that if the amount of Rs. 5,89,620/- (Rupees Five Lacs Eighty Nine Thousand Six Hundred Twenty only) is allowed to be withdrawn by the petitioner without furnishing bank guarantee and in case the respondent succeeds in First Appeal No. 2438 of 2008, it will be impossible for the respondent to recover the said amount from the petitioner. Admittedly, respondent has not preferred any application for stay of the Judgment and Decree passed by the Reference Court dated 22/12/1999 in First Appeal No. 2438 of 2008. 5 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 was 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 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 : 6 “ 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 of execution or any order to the contrary, be acted upon by the Court of first instance. (2) Stay by Court which passed the 7 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 applicant for the due performance of such decree or order as may ultimately be binding upon him. (4) [ Subject to the provisions of sub – 8 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. ] ” 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 said Order. . 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 debtor. 9. This High Court in Writ Petition No. 774 of 2005 decided on 8/4/2005 [ Coram : A.B. Naik, J. ] held that, : 9 “ 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 10 fact that this Court has admitted 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 of 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. ” 9. Considering the above facts and circumstances, Writ Petition preferred by Petitioner is allowed in terms of prayer clause B, which reads as under : “ (B) By issuing appropriate Writ, Order or direction as the case may be, the order dated 28/4/2009 (Exhibit B) passed by the Civil Judge, 11 Senior Division, Aurangabad (Executing Court) in Regular Darkhast No. 278 of 2005 directing the petitioners to furnish bank guarantee as well as the order of verification of the bank guarantee through bank employee dated 7/5/2009 (Exhibit D) in the aforesaid proceedings, may kindly be quashed and set aside and the bank guarantee furnished by the petitioner may be revoked. ” Subject to the petitioner executes Personal Bond giving undertaking that in case the respondent succeeds in First Appeal No. 2438 of 2008, he will bring back the entire amount with interest, if any, within stipulated time as the Court passes order in the First Appeal. No order as to costs. [ K.K. TATED ] JUDGE knp/WP4103.09 12 13 14 15 16 17 18 19