Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 539 (BOM)

KESHAV GAVHALE v. PRAMOD KEDARNATH GANDHI

2019-02-26

Z.A.HAQ

body2019
JUDGMENT : Z.A. Haq, J. 1. Heard the learned Advocates for the parties. None for the respondent No.2 in Writ Petition No. 2602/2017 though served. 2. Rule. Rule made returnable forthwith. 3. These two petitions are disposed by common judgment as in both these petitions same order passed by the District Court is challenged. 4. Writ Petition No.7016/2018 is filed by the decree holder challenging the order passed by the District Court staying the execution of decree (award) passed by the Cooperative Court in Dispute No.200/1978. In Writ Petition No.2602/2017, the petitioner has challenged the condition imposed by the District Court requiring him to deposit Rs.15,000/- per month towards occupation charges, while granting stay as prayed for by the petitioner. 5. The petitioner in Writ Petition No.7016/2018 (hereinafter referred to as the decree holder) had filed Dispute No.200/1978 before the Cooperative Court praying that possession of the premises in question be handed over to him. The Cooperative Court passed an award on 27th April, 1981 in favour of the decree holder. The petitioner in Writ Petition No. 2602/2017 was not party to the Dispute No. 200/1978. The award passed by the Cooperative Court in Dispute No. 200/1978 was maintained up to the Supreme Court. The decree holder filed execution proceedings which came to be registered as R.D. No. 246/1986. The petitioner In Writ Petition No. 2602/2017 filed R.C.S. No.818/1986 seeking reliefs in the following terms: “(i) Declare that the plaintiff is in lawful possession of Shop No.1 in Vijayanand Cooperative Housing Society Ltd. Nagpur as a tenant/lessee and that he cannot be dispossessed by the defendants in execution of a warrant of possession in R.D. No. 246/86 as the plaintiff is not a party thereto. (ii) Declare that the orders passed in R.D. No. 246/86 does not bind as the plaintiff is not a party in the said proceedings. (iii) Grant permanent injunction restraining the defendants from disposing the plaintiff in execution proceeding No. R. D. No.246/86 or by any other method without joining the plaintiff as a party in the proceedings. (iv) Stay the effect, operation and execution of the proceedings in R.D. No. 246/86 and restrain the defendants from dispossessing the plaintiff. (v) Grant any other appropriate relief to the plaintiff expedient in the facts and circumstances of the case.” 6. (iv) Stay the effect, operation and execution of the proceedings in R.D. No. 246/86 and restrain the defendants from dispossessing the plaintiff. (v) Grant any other appropriate relief to the plaintiff expedient in the facts and circumstances of the case.” 6. During pendency of R.C.S. No.818/1986, the execution proceedings i.e. R.D. No. 246/1986 filed by the decree holder were dismissed in default. This civil suit is dismissed by the trial Court by the judgment dated 4th May, 2013. The judgment and decree passed in R.C.S. No. 818/1986 is challenged by the petitioner before the District Court in appeal which is pending. After dismissal of the civil suit R.C.S. No. 818/1986, the decree holder filed execution proceedings which are registered as R.D. No. 110/2014. Initially, the decree holder prayed for execution of decree passed in R.C.S. No. 818/1986. Subsequently, the petitioner sought execution of award passed in Dispute No. 200/1978. After the decree holder filed these execution proceedings i.e. R.D. No. 110/2014, the petitioner had filed an application under Order 41 Rule 5 of the Code of Civil Procedure before the District Court praying that the proceedings of R.D. No.110/2014 be stayed. The application filed by the petitioner under Order 41 Rule 5 of the Code of Civil Procedure is decided by the impugned order. The learned District Judge has stayed the execution proceedings i.e. R.D. No.110/2014 on condition that the petitioner deposits Rs.15,000/- per month towards occupation charges. 7. Though the litigation has checkered history, in these two petitions the only point which is required to be considered is: Whether the District Court, while exercising jurisdiction under Order 41 Rule 5 of the Code of Civil Procedure can stay the execution of decree which is not subject matter of challenge in the appeal before the District Court? 8. The provisions of Order 41 Rule 5 of the Code of Civil Procedure read as follows: “Order 41 - ......... 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 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.” The language of Order 41 Rule 5 is clear and unambiguous. It lays down that the filing or pendency of appeal shall not operate as stay of proceedings under a decree or order appealed from. It further lays down that the trial Court may stay execution of such decree i.e. the decree against which appeal is filed, if sufficient cause is shown by the appellant. In my view, the provisions of Order 41 Rule 5(1) of the Code of Civil Procedure does not confer any power or jurisdiction on the appellate Court to stay the execution of a decree which is not challenged in that particular appeal. 9. In the present case, the appeal which is pending before the District Court at the behest of the petitioner in Writ Petition No. 2602/2017 is against the judgment and decree passed by the trial Court in R.C.S. No. 818/1986. R.C.S. No. 818/1986 is dismissed. Consequently, the petitioner in Writ Petition No. 2602/2017 (who is appellant before the District Court) cannot seek stay of execution of the judgment and decree passed in R.C.S. No. 818/1986. The decree (award) passed in Dispute No. 200/1978 is not challenged in the appeal which is pending before the District Court. Hence the District Court cannot stay the execution of that decree (award), exercising jurisdiction under Order 41 Rule 5 of the Code of Civil Procedure. 10. In view of the above, I find that the impugned order is unsustainable having been passed by the learned District Judge by overstepping his jurisdiction. As the order granting stay to the execution of R.D. No. 110/2014 is unsustainable, the condition imposed by the learned District Judge requiring the petitioner in Writ Petition No. 2602/2017 to deposit Rs.15,000/- per month towards occupation charges also does not survive. 11. Hence the following order: (i) The impugned order is set aside. (ii) The application under Order 41 Rule 5 of the Code of Civil Procedure filed in the appeal before the District Court by the petitioner in Writ Petition No. 2602/2017 is dismissed. (iii) Writ Petition No. 7016/2018 is allowed accordingly. Writ Petition No. 2602/2017 is dismissed. (iv) In the circumstances, the parties to bear their own costs. (v) The amount deposited by the petitioner in Writ Petition No.2602/2017 pursuant to the order passed by the learned District Judge be given back to him alongwith interest on it, if any. (iii) Writ Petition No. 7016/2018 is allowed accordingly. Writ Petition No. 2602/2017 is dismissed. (iv) In the circumstances, the parties to bear their own costs. (v) The amount deposited by the petitioner in Writ Petition No.2602/2017 pursuant to the order passed by the learned District Judge be given back to him alongwith interest on it, if any. (vi) The petitioner in Writ Petition No. 7016/2018 (decree holder) will be at liberty to file application before the District Court pointing out that he is entitled for the occupation charges.