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2004 DIGILAW 268 (MP)

Sneh Pharmaceuticals Pvt. Ltd. v. Bank of Baroda

2004-03-17

A.M.SAPRE

body2004
Judgment ( 1. ) HAVING heard learned Counsel for the petitioner and having perused record of the case, I am unable to find any merit in this writ filed by the judgment debtors/defendants/ non-applicants. ( 2. ) THE petitioners are non-applicants/defendants/judgment debtors. They have suffered a money decree for Rs. 1,37,73,964/- from Debt Recovery Tribunal at the instance of respondent-Bank on 29. 11. 2002 in T. A. No. 914 of 1998 (Annexure A ). It is the case of petitioners that they have filed appeal to appellate authority under the Debt Recovery Act against the impugned decree and has also applied for stay of its execution but since the appellate authority has not been functioning, hence, this petition for seeking stay of execution of the impugned decree. ( 3. ) HEARD Mr. A. Bagadia, learned Counsel for the petitioner. ( 4. ) HAVING heard learned Counsel for the petitioner and having perused record of the case, I find no merit in the writ. ( 5. ) IN the first place. , there is no case made out for grant of stay of execution of money decree suffered by the petitioners. Secondly, even on facts as rightly held by the Tribunal in the impugned judgment/decree, the petitioners/non-applicants/defendants had no defence on facts while opposing the legal claim of the respondent-Bank. Indeed it was found that there is no specific denial of claim made by Bank. Thirdly, in the absence of any defence much less substantial defence not being taken by the petitioner and no jurisdictional or legal error prima facie being noticed and/or pointed out by the learned Counsel for the petitioners in the impugned judgment, this Court cannot exercise its extraordinary jurisdiction under Articles 226/227 of the Constitution of India and grant stay of execution of money decree. ( 6. ) LEARNED Counsel for the petitioners then contended that petitioners are entitled for stay so long as appellate authority does not start functioning. I do not agree. A grant of stay does not depend upon functioning or non-functioning of appellate authority so far as this Court is concerned but it depends upon making of a prima facie case on the merits of the controversy. I do not agree. A grant of stay does not depend upon functioning or non-functioning of appellate authority so far as this Court is concerned but it depends upon making of a prima facie case on the merits of the controversy. In other words, this Court in order to consider grant of stay to the petitioner or its refusal, is required to take into consideration the facts involved in the controversy and then find out whether any case for stay of execution of money decree is made out or not? As observed supra, when this Court prima facie found that petitioners have failed to make out any case for grant of stay of execution of money decree then in my view, this Court can- not stay execution of money decree on the ground of no- functioning of appellate authority. Such ground, if taken to be the basis for grant of stay would be de hors the issue and is regarded as an irrelevant consideration. ( 7. ) A grant of stay of execution of decree is a matter of discretion. It needs to be exercised on facts of each case. In every case, the judgment debtor who has suffered decree and has questioned its legality in appeal has got to satisfy the Court prima facie that he has an arguable case on facts and defence and that he is likely to suffer irreparable loss and injury in case, if decree is allowed to be executed. A kind of loss and injury must be pleaded on facts as was observed by His Lordship Vivian Bose, J. (as His Lordship then was) in his classic case reported in Anandi Prasad v. Govinda Basu, AIR 1934 Nag. 160. The passing of the decree against the judgment debtor does not constitute an injury because it is bound to be in every case. Similarly filing of an appeal cannot be taken as constituting a right to claim a stay. The consideration for grant of stay is entirely different. The rights of decree holder are always regarded as more valuable as against the rights of judgment debtor and as observed by Vivian Bose, J. in the aforesaid case. Such rights are always forgotten by the appellate Court or by the Court which considers the prayer of stay. The consideration for grant of stay is entirely different. The rights of decree holder are always regarded as more valuable as against the rights of judgment debtor and as observed by Vivian Bose, J. in the aforesaid case. Such rights are always forgotten by the appellate Court or by the Court which considers the prayer of stay. Indeed, law laid down in the case of Anandi Prashad, referred supra, must be taken note of while considering the issue of stay, be that under Order 41 Rule 5, or in some other law for the time being in force. ( 8. ) I have already held supra that so far as this case is concerned, neither on facts, nor in law, any prima facie case was made out by the petitioner for grant of stay of execution of decree. The only point urged by learned Counsel for the petitioner was that since appeal is filed and appellate Court is not functioning the petitioner be granted stay. This Court has found no substance in these submissions. ( 9. ) PETITION, thus, is found to be meritless. It is hereby dismissed in limine. Petition dismissed in limine.