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2022 DIGILAW 689 (PAT)

State of Bihar v. Surya Narayan Poddar

2022-08-10

PARTHA SARTHY

body2022
ORDER I.A. no.4 of 2021 Heard learned counsel for the appellants and learned counsel for the respondent. 2. The instant application has been filed on behalf of the respondent for directing that the decretal amount which has been deposited by the judgment debtor in the name of the decree holder and the money is lying in the Katihar District Treasury be paid to the respondent-decree holder. 3. The relevant facts for the purpose of the instant application in brief are that by order dated 11.9.2002 passed in CWJC no.6811/2002 (Surya Narayan Poddar vs. State of Bihar), this Court gave liberty to the petitioner (respondent herein) to file an application under Section 5 of the Act before the Collector of the district who was directed to complete the process and make payment within three months from the date of submission of the application and report compliance to this Court by filing a supplementary counter-affidavit personally sworn by him. As directed, the applicant-respondent filed L.A. Case no.2 of 2006 for deciding just and appropriate compensation payable to him. The said petition was allowed and on calculation, it was found that the applicant-respondent was entitled to get Rs.22,80,090/ excess amount. The State was directed to pay the excess amount within a period of 30 days. Accordingly, the award was prepared and signed on 14.6.2013. 4. It is submitted by learned counsel appearing for the respondent that not a single farthing was paid to the applicant-respondent and as such, he filed Execution Case no.1 of 2013 for payment of the entire excess amount along with interest till the date of realisation. In the meantime, the appellant-State of Bihar and its authorities preferred the instant First Appeal no.106 of 2014 under the provisions of the Land Acquisition Act wherein I.A. no.5632 of 2016 was filed praying therein to stay the execution case. This Court vide its order dated 18.4.2017 disposed of the said application giving liberty to the appellant- State of Bihar to deposit the decretal amount in the learned court below within 90 days from the date of receipt/production of a copy of the order and it was further ordered that if the appellant do so, further proceeding of Execution Case no.1 of 2013 pending in the Court of learned Sub Judge I, Katihar shall remain stayed till further order of this Court. The appellant-judgment debtor deposited the amount of Rs.22,80,090/ in the name of the respondent-applicant-decree holder in the Treasury at Civil Court, Katihar Nazarat. 5. As the money was not paid to the respondent-applicant, a petition dated 25.7.2019 (Annexure-3) was filed praying therein that order for payment be passed to enable the decree holder to get the amount. The learned trial court by its order dated 6.9.2019, taking note of the fact that by order dated 18.4.2017 passed in F.A. no.106 of 2014, the order was only for deposit of the decretal amount, did not pass any orders for payment and rejected his petition. 6. It is submitted by learned counsel for the respondent that on rejection of his aforesaid petition, the respondent-applicant filed I.A. no.3 of 2019 in the instant appeal praying for setting aside of the order dated 6.9.2019 passed in L.A. Execution Case no.1 of 2013, however this Court by its order dated 21.12.2019, was of the opinion that the said order having been passed in a separate proceeding, the respondent ought to have challenged the same before the appropriate forum in accordance with law. Accordingly, the respondent filed a fresh case which was registered as Civil Misc. Case no.235 of 2020 which was disposed of as not pressed by order dated 30.4.2021 (Annexure-6) giving liberty to the respondent-applicant to file an appropriate petition in the pending F.A. no.106 of 2014 for issuance of appropriate direction to the learned trial court with regard to payment of the decretal amount. It is pursuant to the said order and the liberty granted therein that the instant application has been preferred praying for a direction to the learned trial court for payment of the decretal amount to the respondent-applicant. 7. It is further submitted by learned counsel appearing for the respondent that Order XLI Rule 5 of the Code of Civil Procedure deals with stay by appellate court and it categorically provides that mere filing of the appeal would not operate as stay of the proceedings under a decree or order appealed against and the grounds of stay have been provided in Order XLI Rule 5(2) of the Code. It is further submitted that the decree from which the instant appeal arises is a money decree which in normal course is not stayed. It is further submitted that the decree from which the instant appeal arises is a money decree which in normal course is not stayed. Further, learned counsel for the respondent in support of his submissions relies on the judgment in the case of M/s Malwa Strips Pvt. Ltd. vs. M/s Jyoti Ltd. [ AIR 2009 SC 1581 ] and specially paragraph nos.11, 12 and 13 thereof. 8. The application filed by the respondent is opposed by learned counsel for the appellants. From the material on record and specially the order dated 18.4.2017 passed in I.A. no.5632 of 2016, it is submitted that while staying further proceeding of Execution Case no.1 of 2013, there was no order for payment of the decretal amount to the applicant-decree holders. It is submitted that the appellants have got a very good case on merits and every chance of succeeding in the instant appeal. It is further submitted that in the case of M/s Malwa Strips Pvt. Ltd. vs. M/s Jyoti Ltd. (supra), even the Hon’ble Apex Court had directed for furnishing security on part of the amount. 9. Having heard learned counsel for the parties and taking into consideration the material on record, the facts relevant for the instant application are that the instant appeal arises from money decree wherein pursuant to the order dated 18.4.2017 the excess amount of compensation payable to the respondent-applicant to the tune of Rs.22,80,090/ has been deposited by the appellant-judgment debtor in the learned trial court. At this stage, it would be relevant to take note of the first order giving rise to this proceeding which is order dated 11.9.2002 passed in CWJC no.6811 of 2002 (Surya Narayan Poddar vs. State of Bihar) wherein this Court had granted liberty to the petitioner (respondent herein) to file an appropriate application under section 5 of the Act before the Collector of the district who was to complete the process and make payment within three months from the date of submission of the application and to report compliance by filing supplementary counter-affidavit personally sworn by him. Inspite of the order dated 11.9.2002, the complete amount of compensation which includes the present amount of Rs.22,80,090/- has still not been paid to the respondent inspite of the judgment dated 31.5.2013 passed in L.A. Case no.2 of 2006 from which the instant appeal arises. 10. Inspite of the order dated 11.9.2002, the complete amount of compensation which includes the present amount of Rs.22,80,090/- has still not been paid to the respondent inspite of the judgment dated 31.5.2013 passed in L.A. Case no.2 of 2006 from which the instant appeal arises. 10. Further from perusal of the judgment in the case of M/s Malwa Strips Pvt. Ltd. (supra) relied-on on behalf of the respondent, on perusal of paragraph nos.11, 12 and 13 thereof, the Hon’ble Apex Court has held that the discretion of the appellate court under Order XLI Rule 5(5) of the Code of Civil Procedure has to be exercised judicially. The Court goes to observe that ordinarily execution of a money decree is not stayed inasmuch as satisfaction of money decree does not amount to irreparable injury and in the event of the appeal being allowed, the remedy of restitution is always available to the successful party. The Hon’ble Apex Court further observed that for grant of stay sufficient cause must be shown. 11. In the facts of the present case, in the opinion of the Court, no cause whatsoever has been shown as to why the money decree from which the instant appeal arises be stayed. No case has been made out on behalf of the appellants for stay of the money decree nor has it been demonstrated as to what hardship would be caused in case the same is not stayed. 12. In the supplementary affidavit filed on behalf of the respondent, the respondent has categorically stated therein that the wife of the sole respondent is seriously ill as she has been detected to be suffering from Cancer for which sufficient money is required for her treatment and further an undertaking has been given by the respondent to return the decretal amount without any need of execution in case of the appellant-State of Bihar succeeding in the instant appeal. 13. Having heard learned counsel for the parties and taking into consideration the submissions made on behalf of the parties together with the materials on records and the ratio of the judgment referred to herein above, the Court is of the opinion that the prayer made by the respondent-applicant in the instant application is fit to be allowed. 13. Having heard learned counsel for the parties and taking into consideration the submissions made on behalf of the parties together with the materials on records and the ratio of the judgment referred to herein above, the Court is of the opinion that the prayer made by the respondent-applicant in the instant application is fit to be allowed. The application is allowed and it is directed that the decretal amount deposited by the appellant- State of Bihar to the tune of Rs.22,80,090/ and which is lying in Katihar District Treasury be released in favour of the respondent-applicant-decree holder within a period of four weeks from today. I.A. no.4 of 2021 stands disposed of.