Bombay HC: What procedure the Executing court should follow if conditional stay is granted by higher court?

 Having regard to the aforesaid discussion, it becomes necessary to clarify the position so that such situations do not arise repeatedly. Whenever a superior Court grants stay to an award under the Land Acquisition Act subject to deposit of the awarded amount or any part thereof, the Executing Court shall insist upon satisfactory proof showing compliance of such condition. Mere statement that a stay order has been granted would not by itself be sufficient. The Executing Court must satisfy itself that the condition attached to the stay order has actually been complied with within the period prescribed by the superior Court. {Para 9}

10. If the judgment debtor, the State or the Acquiring Body fails to place proof showing compliance with the condition of deposit within the stipulated period, the Executing Court shall not postpone execution proceedings merely because a conditional stay order exists. In such circumstances, the Executing Court shall proceed further with execution in accordance with law. It shall also make all reasonable efforts to dispose of such proceedings expeditiously so that the claimants are not unnecessarily deprived of compensation already determined in their favour.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO.2109 OF 2025

State of Maharashtra Vs Zubeda Fakir Mohammad 

CORAM : AMIT BORKAR, J.

DATED : JUNE 9, 2026

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What conditions can be imposed by appellate court while staying decree of eviction?

 Appellate courts in India have significant discretionary power to impose reasonable conditions when granting stays on eviction decrees. The Supreme Court in Atma Ram Properties v. Federal Motors established the legal framework allowing appellate courts to impose such conditions to compensate landlords for losses due to delayed execution of eviction decrees.

Key Conditions That Can Be Imposed

Payment of Enhanced Rent or Compensation

Courts can require tenants to deposit amounts higher than the contractual rent during the pendency of the appeal. 

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Supreme Court: Application For Compensation by Landlord at belated stage Can't Be Entertained When Appeal Is Ready For Final Hearing

 In my opinion if Interim Application as per the ratio laid down by the judgment of Atma Ram Properties (supra) is preferred in a short span of time after the Appeal is admitted and stay is granted to the execution of eviction decree, the same can be decided by Appellate Court on its own merits, by putting the tenant on reasonable terms.

But certainly such an application preferred much later for fixing market rent/compensation, after the Appeal is ready for final hearing, would not be entertainable when both the parties were heard at the time of Admission of Appeal and the execution of judgment and decree of eviction was stayed.{Para 7}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

INTERIM APPLICATION NO. 15729 OF 2023

IN

CIVIL REVISION APPLICATION 646 OF 2012

Brijbhushan Chandrabali Shukla Vs Shri. Mahendra Yadav, S/o

Lavjari S. Yadav 

CORAM : RAJESH S. PATIL, J.

DATED : 12 JANUARY 2024.

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Whether the court can stay execution of award passed under MV Act during pendency of application for condonation of delay in filing of appeal?

However, what the Hon’ble Andhra Pradesh High Court with respect, does not appear to have considered is what has been considered by the Division Bench of this Court in Bhagwan Ganpatrao Godsay Vs. Kachrulal Bastimal Samdariya and connected matters (supra) that if the word “shall” in sub-rule (3) is construed as mandatory the appeal may become infructuous as the decree may have been executed by then. The whole object of bringing in Rule 3-A was to ensure that the Courts do not admit appeals and postpone the consideration of the question of limitation beyond the stage of admission. The mischief was in the practice of the Courts granting interim stay of execution of decrees without admitting appeals and the consideration of limitation was left open until the appeals were finally disposed. The purpose was not to frustrate the right of appeal itself but to regulate it in such manner by evolving a procedure that the Courts consider condonation of delay before admission of appeals. Also what the Hon’ble Andhra Pradesh High Court did not consider that the reference in sub-rule (3) in Rule 3-A is to a proposed appeal and not to an appeal. {Para 33}

34. Although the Learned Counsel have referred to the decision

of the Hon’ble Supreme Court on the interpretation of the word

“shall” in Sub-Rule (1) of Rule 3-A of Order XLI in the case of

State of M.P. and Anr. Vs. Pradeep Kumar and Anr.(2000) 7SCC

372 , however, no decision of the Hon’ble Supreme Court with respect to the interpretation/construction of the word “shall” in subrule (3) of Rule 3-A of Order XLI contrary to the decision of the Division Bench of this Court in the case of Bhagwan Ganpatrao Godsay Vs. Kachrulal Bastimal Samdariya and connected matters (supra) has been brought to my notice. 

35. Ergo, considering the authoritative pronouncement of a Division Bench of this Court in the case of Bhagwan Ganpatrao Godsay Vs. Kachrulal Bastimal Samdariya and connected matters (supra) that the word “shall” used in sub-rule (3), of Rule 3-A in Order XLI of the CPC be construed as permissive and not mandatory in the absence of any decision to the contrary, I am bound by the same.

36. In this view of the matter, the applications for stay of the

impugned judgment and award passed under the MV Act in a

proposed First Appeal can be considered for ad-interim/interim

stay even if the condonation of delay application is pending.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL APPLICATION NO.655 OF 2018(delay)

Shriram General Insurance Company Limited  V/s. Sou. Jyoti Vithoba Nahire and Anr 

CORAM : ABHAY AHUJA, J.

PRONOUNCED ON : 21st September, 2023

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In an appeal against eviction decree under The Transfer of Property Act court should give interim compensation from which date?

This now only leaves me to decide that in the facts of the present case what would be the date from which interim compensation ought to have been awarded by the Appellate Authority. As mentioned earlier, section 106 of the Transfer of Property Act, 1882 clearly stipulates that in the absence of a contract or local law or usage to the contrary, the lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable on the part of the lessor or the lessee by six months' notice. A lease of immovable property for any other purpose shall be terminable on the part of either the lessor or the lessee by 15 days' notice. In the facts of the present case, it is the case of the Plaintiff that an open plot of land was leased to the Defendant which was not leased out for any agricultural or manufacturing purposes. This being the case, at least prima facie, the possession and occupation of the suit premises by the Defendant would be unlawful on the expiry of 15 days from the date of the termination notice (viz. 9th January, 2012). In other words, the possession and occupation of the Defendant would be wrongful from 25th January, 2012. This being the case, I am of the view that the compensation that ought to have been fixed by the Appellate Authority of Rs.1,50,000/- per month, should have been from 1st February, 2012 till the disposal of the Appeal.

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

B. P. COLABAWALLA, J.

Mr. Mujibur Rehman Haji Israr Alam Siddiqui Vs. M/s. K. T. Kubal and Co.

Writ Petition No.80 of 2017

14th July, 2017.

Citation: 2018(2) ALL MR 267,2017(6) BOM.CR.382

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Whether dismissal of stay application in execution application will operate as res judicata in subsequent proceedings?

  An application for stay of execution does not have any trapping of a decree as is contained in Order XXI Rules 101 & 103 of the Code. The said provision reads as under:

“101. Question to be determined.-All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

xx xx xx

103. Orders to be treated as decrees. – Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.”{Para 21}

22. The only effect of filing of an application for stay of the execution would be that the appellant can be said to be aware of the fact that there is a decree for foreclosure passed against him which has not been stayed by virtue of the order of the Court. There is no determination of the claim as is contemplated in terms of Order XXI Rule 97 or Rule 99 of the Code having force of decree. The declining of stay of execution will not operate as res judicata only because Section 11 Explanation VII of the Code is applicable to the execution as well.

Reportable

Supreme Court of India

Narayan Deorao Javle (Deceased ) ... vs Krishna on 17 August, 2021

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Can the court fix interim compensation based on the tenanted property's purchase price while staying eviction decree?

The only legitimate basis for working out interim compensation in our case appears to be the actual price paid for the suit property (i.e. essentially the land) by Respondent No. 19. Respondent No. 19 has acquired reversionary right of the lessors in the suit property for a sum of Rs. 5.50 crores. Evidently, this has been a concrete deal at arms length between men of commerce; it does take into account or, at any rate, must be presumed to have taken into account, all aspects arising out of the lessee's right to the existing structure at the expiry of the lease. It may safely, at least for our purposes, which, as we have seen above, in any event, involve a certain ad-hocism, be taken as the basis for working out a fair interim compensation. Indeed, it is even Mr. Naidu's submission that interim compensation may be premised on this valuation. In his submission, Mr. Naidu has worked out fair return of Rs. 2,56,654 per month (for 4354 sq. yds., i.e. excluding the land appurtenant and below the two chawl like structures) by estimating return at 6.5 per cent per annum on the price paid by Respondent No. 19 (Rs. 5.50 crores). Mr. Naidu, however, terms this amount of Rs. 2,56,654 to be exorbitant, without telling us why. (He probably contends so in the light of the judgments of Atma Ram Properties and Previn Govind Sharma, supra.) Mr. Naidu suggests 50 per cent of this amount (i.e. Rs. 1,28,327/- per month) as a fair return on investment for fixing interim compensation.

14. There is no basis for reducing the amount of fair return to 50 per cent as suggested by Mr. Naidu. The amount is not exorbitant per se and cannot be said to be so on the basis of the cases of Atma Ram Properties and Previn Govind Sharma. As I have noted above, the multipliers in Atma Ram Properties and Previn Govind Sharma are not benchmarks to be used as precedents for fixing compensation generally. In the peculiar facts of our case, it is this return (Rs. 2,56,654/- per month) which may be termed as a fair return on investment, which the eventually successful party may be said to have lost as a result of the stay on eviction and which may be taken as a reasonable compensation to be fixed during the pendency of the CRA as a condition of the stay. There may, at best, be a case for rounding it off to Rs. 2,50,000/- per month.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 357 of 2017

Decided On: 05.11.2020

 Vijay Anant Gangan  Vs.  Zenabibi Gulam Rasool and Ors.

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: MANU/MH/1877/2020

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When should appellate court suspend the operation of the order of lower court during pendency of appeal?

The petitioner alleges that the decree of the trial court entails serious civil consequences and that pursuant to the decree, the plaintiffs are purchasing the stamp papers with the intention of selling the property and consequently the defendant has approached the Court seeking protection of his rights.

2. Having heard the learned Counsel for the petitioner-defendant and having perused the record, this Court finds that where a statutory remedy of an appeal is available and where serious civil consequences follow from an order, it is imperative for the appellate court to suspend the operation of the order.

3. In Mool Chand Yadav and Anr. v. Raza Buland Sugar Co. Ltd., Rampur and Ors. 1983 AWC 121, the Supreme Court held that where orders are challenged in appeal which orders have serious civil consequences, the judicial approach required that during the pendency of the appeal, the operation of the order should be suspended more so when the appeal had been admitted.

IN THE HIGH COURT OF ALLAHABAD

Decided On: 19.12.2008

 Bhagwan Shankar Bajpayee  Vs. District Judge and Ors.

Hon'ble Judges/Coram:

Tarun Agarwala, J.

Citation: 2009(3) Civil court cases 429 ALL

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Whether the court should dismiss the civil appeal if the appellant fails to comply with the condition imposed for a stay of execution?

 We may, however, notice that although the provisions of Sub-rule (3) of Rule 1 of Order XLI have been held not to be mandatory, this Court in Kayamuddin Shamsuddin Khan v. State Bank of India MANU/SC/1336/1998 : (1998)8SCC676 opined that non-compliance of a direction to deposit the decretal amount or part of it or furnish security therefore would result in the dismissal of the stay application but not the entire appeal, stating:

8. This would mean that non-compliance with the direction given regarding deposit under Sub-rule (3) of Rule 1 of Order XLI would result in the Court refusing to stay the execution of the decree. In other words, the application for stay of the execution of the decree could be dismissed for such non-compliance but the Court could not give a direction for the dismissal of the appeal itself for such non-compliance.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7410-7411 of 2008

Decided On: 18.12.2008

Malwa Strips Pvt. Ltd.  Vs. Jyoti Ltd.

Hon'ble Judges/Coram:

S.B. Sinha and Cyriac Joseph, JJ.

Citation: AIR 2009 SC 1581

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Supreme Court: Government is not entitled to get unconditional stay to execution of arbitration award

 It may be true that the Code of Civil Procedure provides for a differential treatment to the Government in certain cases, but the same may not be so applicable while considering a case against the Government under the Arbitration Act. For instance, Section 80 of Code of Civil Procedure provides for a notice of two months to be given before any suit is instituted against the Government. Further, it is also provides that no ex-parte injunction order can be passed against the Government. Whereas on the other hand, under the Arbitration Act no such special provision has been made with regard to arbitration by or against the Government. There is no requirement under the Arbitration Act for a notice of two months to be given to the Government before invoking arbitration proceeding against the Government. Further, Sections 9 and 17 of the Arbitration Act also provide for grant of ex-parte interim orders against the Government.

26. Section 36 of the Arbitration Act also does not provide for any special treatment to the Government while dealing with grant of stay in an application under proceedings of Section 34 of the Arbitration Act. Keeping the aforesaid in consideration and also the provisions of Section 18 providing for equal treatment of parties, it would, in our view, make it clear that there is no exceptional treatment to be given to the Government while considering the application for stay Under Section 36 filed by the Government in proceedings Under Section 34 of the Arbitration Act.

27. Although we are of the firm view that the archaic Rule 8A of Order XXVII Code of Civil Procedure has no application or reference in the present times, we may only add that even if it is assumed that the provisions of Order XXVII Rule 8A of Code of Civil Procedure are to be applied, the same would only exempt the Government from furnishing security, whereas Under Order XLI Rule 5 of Code of Civil Procedure, the Court has the power to direct for full or part deposit and/or to furnish security of the decretal amount. Rule 8A only provides exemption from furnishing security, which would not restrict the Court from directing deposit of the awarded amount and part thereof.

28. For the foregoing reasons, we are of the opinion that the impugned order passed by the Calcutta High Court granting unconditional stay of the arbitration award dated 21.01.2010, cannot be sustained in the eye of law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5432 of 2019 

Decided On: 12.07.2019

 Pam Developments Private Ltd. Vs. State of West Bengal

Hon'ble Judges/Coram:

Rohinton Fali Nariman and Vineet Saran, JJ.

Citation: AIR 2019 SC 3937,(2019) 8 SCC 112

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Whether appellate court can grant stay to execution of decree if application for condonation of delay is not decided within sixty days?

 In Bhagwan Godsay (supra), the Division Bench was also seized of the question whether the use of the word 'shall' in Order XLI, Rule 3-A(3) CPC indicates Legislative imperative. The Division Bench was seized of the construction of the word 'shall' as mandatory or imperative consistent with the object of the Legislature to expedite disposal of the cases of condonation of delay and to ensure that such applications subserve the remedy of appeal itself? The provision of 60 days for the transformation of the 'proposed' appeal [R. A(3)] into an 'appeal' (Rule 11) the situations like those set out in paragraphs 19 and 20 are consistent with the permissive nature of the word 'shall'. The object of the enactment is merely to provide a regulatory procedure to prevent appeals being admitted without considering the question of condonation of delay. The permissive or directory use of the word 'shall' fully conforms to this Legislative intent. If construed as mandatory, the appeal may become infructuous, thereby destroying the regulatory content of Rule 3-A for, then there is nothing left to regulate. In their opinions, therefore, the word 'shall' in Rule 3-A has not been used to denote the imperative. It is permissive while the application for the condonation of delay is pending during the 60 days provided by the statute.

16. In Bhagwan Godsay (supra), the Division Bench in conclusion observed at paragraph 30 that the creation of the right to appeal, and the Court's duty to consider condonation of delay in preferring the appeal, on the one hand and the prohibition against grant of stay of execution of decrees on the other create a situation which has to be resolved on the basis of accepted rules of construction. We have elaborated the reasons in the paragraphs 13 to 22 above. This discrepancy can be resolved by equitable construction of Rule 3-A of Order XLI, of Code of Civil Procedure. Order XLI, Rule 3-A was enacted not for the purpose of prohibiting the stay of execution of decrees pending consideration of the applications for the condonation of delay but for ensuring that the courts do not admit appeals without consideration of the application for the condonation of delay and to provide a procedure to regulate the practice of Courts in this matter. This being the dominant purpose of the legislation, it is adequately fulfilled by the construction which we have laid down. The construction which we have proposed is consistent with legislative intent that during 60 days that may be taken for the hearing of the appeal under Rule 11, the appeals should be kept alive. In our opinion, Legislation did not intend that the right of appeal should be frustrated by refusal to stay the execution of decrees during the interregnum between proceeding under Order XLI, Rule 3-A and Order XLI, Rule 11. The intent was to enable the courts to stay the execution of decrees during this short period. The word 'shall' employed in Order XLI, Rule 3-A(3) is permissive and not mandatory. There is a thin dividing line whereby this judgment would not support the case of the respondent inasmuch as unlike what is contemplated in Rule 11A, the application for the condonation of delay was not decided within 60 days period as to keep the appeal alive and to grant the stay of the execution of the decree under execution. In that view of the matter there is force in the contention of Shri D'Souza, learned Advocate that the learned District Judge-1 could not have granted the stay of the judgment and order dated 21/08/2008 only on the specious premise that the purpose of filing the appeal would be defeated if stay was not granted. The appeal at the instance of the respondents was the proposed appeal pending the condonation of delay of more than 9 years and besides the said application for the condonation of delay was not decided within 60 days. Looked at from any point of view, the learned District judge could not have passed the order as it did in a perfunctory manner and thereby caused prejudice to the petitioner. 

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 449 of 2018

Decided On: 24.08.2018

Luis Antonio Romualdo Jesus de Maria Jose De Abreu Vs. Linda D'Souza e Fernandes and Ors.

Hon'ble Judges/Coram:

Nutan D. Sardessai, J.

Citation:(2019) 1 MHLJ 656

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Whether it is mandatory for court to impose conditions while granting stay to execution of arbitration award?

A bare perusal of the provisions of Section 36 shows that the jurisdiction so conferred on the Court is a discretionary jurisdiction. The proviso to Sub-section (3) further makes it implicit that the provisions of Order 41 Rule 1 Sub-Rule 3 and Rule 5 would become relevant. In exercising powers under Order 41 Rule 5 the Court exercises its discretion and may grant a stay to the execution of a decree if "sufficient cause" is made out and the party seeking stay satisfies the Court that it will sustain substantial loss and inter-alia satisfies the condition as stipulated in sub-Rule 3 of Rule 5. Thus, the under scheme of the provisions of Section 36 read with Order 41 Rules 1 and 5 of the C.P.C., the party opposing grant of a stay cannot assert a proposition that it would be mandatory for the Court to impose a condition for a stay to the execution proceedings. It is for the Court to consider the facts and circumstances of the case and exercise its discretion either to grant a stay to the execution of the decree or impose or not impose any other condition, as the Court may deem appropriate. The above position in law has been clearly recognized by the Supreme Court in Malwa Strips Private Limited Versus Jyoti Limited1. The discretion so vested in the Court is required to be exercised judicially and not arbitrarily and in the interest of justice. (see Sihor Nagar Palika Bureau Versus Bhabhlubhai Virabhai & Co. (supra). Adverting to these principles of law, the learned Single Judge in the facts of the case, has appropriately exercised discretion as vested with the court under the provisions of Section 36(3) of the Act read with provisions of Order 41 Rule 5 in passing the impugned order.

IN THE HIGH COURT OF BOMBAY

Appeal No. 101 of 2018 in Notice of Motion No. 2059 of 2017

Decided On: 14.03.2018

 Ecopack India Paper Cup Pvt. Ltd. Vs. Sphere International

Hon'ble Judges/Coram:

N.H. Patil and G.S. Kulkarni, JJ.

Citation: AIR 2018(NOC) 916 Bom

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Supreme court: Trial of Civil / criminal cases can not be stayed for more than six months

 In view of above, situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to remedy this, situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.

In the Supreme Court of India

CRIMINAL APPELLATE JURISDICTION

(Before Adarsh Kumar Goel, Navin Sinha and R.F. Nariman, JJ.)

Criminal Appeal Nos. 1375-1376 of 2013

Asian Resurfacing of Road Agency Pvt. Ltd. v.  Central Burueau of Investigation .

Decided on March 28, 2018

Citation: 2018 SCCONLINE SC 310

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Whether amended S 36 of arbitration Act will be applicable to application U/S 34 on date of commencement of amendment Act?

In Narhari Shivram Shet Narvekar v. Pannalal
Umediram (1976) 3 SCC 203 at 207, this Court, following
Lalji Raja (supra), held as follows:
73“8. Learned counsel appearing for the
appellant however submitted that since the
Code of Civil Procedure was not applicable to
Goa the decree became inexecutable and this
being a vested right could not be taken away
by the application of the Code of Civil
Procedure to Goa during the pendency of the
appeal before the Additional Judicial
Commissioner. It seems to us that the right of
the judgment debtor to pay up the decree
passed against him cannot be said to be a
vested right, nor can the question of
executability of the decree be regarded as a
substantive vested right of the judgment
debtor. A fortiori the execution proceedings
being purely a matter of procedure it is well
settled that any change in law which is made
during the pendency of the cause would be
deemed to be retroactive in operation and the
appellate court is bound to take notice of the
change in law.”
Since it is clear that execution of a decree pertains to the
realm of procedure, and that there is no substantive
vested right in a judgment debtor to resist execution,
Section 36, as substituted, would apply even to pending
Section 34 applications on the date of commencement of
the Amendment Act.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.2879-2880 OF 2018
(Arising out of SLP (C) Nos.19545-19546 of 2016)
BOARD OF CONTROL FOR CRICKET
IN INDIA 
V
KOCHI CRICKET PVT. LTD. AND ETC.
Dated: March 15, 2018.

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Whether monetary benefits derived by tenant can be considered by court while granting stay to execution of eviction decree?

 It was the submission of Shri Sanglikar that in terms of the Judgment of the Learned Single Judge in Chandrakant Dhanu's case, the Petitioners i.e. the original Appellants cannot be directed to pay more than a percentage of the prevalent market licence fees. In my view, it is not possible to accept the said contention as the factor relied upon by Mr. Sanglikar is only one of the factors amongst other factors which are to be taken into consideration whilst fixing the interim compensation as a condition for grant of stay, but the same would also depend on the facts and circumstances of each case. The Judgment of the Apex Court in Yacob's case (supra) would also have no application as in the said case the issue was of fixation of fair rent i.e. the standard rent under the Bombay Rent Act and it is in the said context that the Apex Court held that the value of the structures has no relevance. The facts of the instant case can be distinguished from the facts of the case that were there before the Apex Court in Yacob's case (supra) as in the instant case, the Petitioners are faced with a decree of eviction in respect of which decree they have sought a stay and therefore the Appellate Bench of the Small Causes Court was entitled to take into consideration amongst other things the monetary benefit that the Petitioners were deriving out of the structures and sheds. It is required to be noted that the suit premises i.e. the land is situated in Byculla that is in South Mumbai and it is about 4 to 5 kilometers from V.T. Station or Chatrapati Shivaji Terminus. The said land can therefore be said to be a prime property in the context of its location. The Petitioners are exploiting the said plot of land which has been leased and assigned to them by letting out the sheds and the structures which have been constructed on the said land. The tabular statement reproduced hereinabove shows that the licencees are Companies as well as the Canadian Consulate from whom the Petitioners have taken rent free deposit as also are getting handsome licence fees. The conduct of the Petitioners shows that they have let out the premises when the Suit was pending. As can be seen from the tabular statement for an area of 6865 sq.ft. the Petitioners are getting licence fees of Rs. 4,32,500/- per month. Faced with the situation wherein the valuation report produced by the Petitioners shows very low figure of Rs. 3,62,409/- and the valuation report of the Respondents shows a very high figure of Rs. 27,38,353/-. The Appellate Bench of the Small Causes Court took upon itself to fix the compensation having regard to the following factors namely land being lease hold, zone in which land is situated , available FSI, non touch road, structures being licenced, non onerous to the Appellants and non denying the right of the Appellants and fixed the compensation at Rs. 10,00,000/- per month and also directed the deposit of said amount from a particular date and directed the Petitioners to furnish undertaking in terms of the operative part of the impugned order.

13. In so far as the amount fixed by the Appellate Bench of the Small Causes Court is concerned, the said amount would also have to be considered in the context of the licence fees and the interest free deposits which the Petitioners are getting from the licensee who are in occupation of various sheds in the suit premises. This is in view of the fact that by the judgments of the Apex Court it is well settled that the decree holder is required to be compensated for the loss caused to him on account of the decree being stayed. If the said principle is applied, then the amount fixed at Rs. 10,00,000/- per month cannot be said to be excessive, exorbitant or fanciful, as has been observed by the Apex Court in the case of Supermax International Pvt Ltd. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4230 of 2017

Decided On: 05.05.2017

Hasanali Hasambhoy Jetha and Ors. Vs. Razia Yusuf Noorani and Ors.

Hon'ble Judges/Coram:

R.M. Savant, J.

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Whether award debtor should obtain stay to execution of award if arbitration proceeding commenced prior to coming in to force of Amendment Act 2015?

In State of Bombay (in both the appeals) v. 1. Supreme General Films Exchange Ltd. and 2. Arati Cotton Mills Ltd. reported in MANU/SC/0007/1960 : AIR 1960 SC 980 cited by Mr. Mitra. Mr. Justice Das pronouncing the judgment of the Supreme Court pronounced the dictum that interference with the right of appeal by inserting a new condition or a more onerous condition was not a matter of procedure only. It impaired or interfered with a substantive right. Such an enactment could not be retrospective unless expressly stated to be so.

23. In the case of Videocon International Ltd. v. Securities and Exchange Board of India reported in MANU/SC/0023/2015 : (2015) 4 SCC 33, also cited by Mr. Mitra, Mr. Justice Khehar after discussing a large number of authorities laid down the following propositions which included quotations from the authorities discussed by his lordship on the subject:

"26********* (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal, even though remedial, is substantive in nature.

(iii) Every litigant has a vested right in substantive law, but no such right exists in procedural law.

28.**********We are, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act, such legislation is prospective in operation and does not affect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statute and further a statute is not to be construed to have a greater retrospective operation than its language renders necessary, but an amending act which affects the procedure is presumed to be retrospective, unless amending act provides otherwise. We have carefully looked into the new substituted Section 15 brought in the parent Act by the Amendment Act, 1995 but do not find it either expressly or by necessary implication retrospective in operation which may affect the rights of the parties on the date of adjudication of suit and same is required to be taken into consideration by the appellate court."

24. Therefore, to put it shortly changing the forum of appeal or the location of the appellate court is a procedural matter. But a new Act or amending Act changing the right of appeal or the conditions under which an appeal can be filed deals with a substantive right of a person. A vested substantive right of this nature is usually not disturbed by a new or amending Act. If such a right is sought to be extinguished there has to be an express or implied provision. This court relying on numerous decisions has held in Saraf Agencies Pvt. Ltd. and Ors. v. Federal Agencies for State Property Management and Ors. that an application to set aside the award is to be treated like an appeal and that all substantive rights accrue at the time of commencement of arbitral proceedings.

25. By amendment of Section 36 of the Arbitration and Conciliation Act, a party challenging an award has to deposit with the registry of the court the awarded amount or secure it to the satisfaction of the court, as a condition precedent to obtain stay thereof, pending the setting aside application, which condition was absent prior to the amendment. This is certainly an alteration of the conditions under which such an application was heard prior to the amendment, when stay was automatic on filing of a valid setting aside application. Thus the substantive rights of an award debtor have been affected.

26. The Special bench judgment of our court in the case of Union of India v. Amitava Paul along with the connected matter reported in MANU/WB/0371/2015 : AIR 2015 89 (FB) has only held that Order 41 Rule 1(3) was directory in nature. It made no comment as to whether the provision was to be taken as procedural or substantive law.

27. I do note that this court's view in Saraf Agencies Pvt. Ltd. and Ors. v. Federal Agencies for State Property Management and Ors. has been endorsed in the later case of Braithwaite Burn & Jessop Construction Co. Ltd. v. Indo Wagon Engineering Ltd. by Mr. Justice Soumen Sen.

28. Hence, the law prevailing at the time of commencement of the arbitration will apply till the disposal of the setting aside application at the highest level. The amending Act of 2015 did not alter any vested substantive right. Therefore, the right of the petitioner in arbitration which commenced before the coming into force of the amending Act, to challenge the award without any condition is preserved by the amendment Act.

IN THE HIGH COURT OF CALCUTTA

G.A. No. 3750 of 2015 and A.P. No. 1709 of 2015

Decided On: 17.07.2017

 West Bengal Power Development Corporation Ltd. Vs. Dongfang Electric Corporation

Hon'ble Judges/Coram:

I.P. Mukerji, J.

Citation: AIR 2017 Cal 297

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Whether requirement to make application for stay and furnishing security provided under Arbitration amendment Act 2015 is retrospective in nature?

In such a situation, it would have to be considered, independent of Section 26 of the Amending Act, as to whether the amended provisions applied to the said second and third category of cases. In this regard, we may note the observations of the Supreme Court in Thyssen (supra) where, after, considering several earlier decisions, the Supreme Court observed in paragraph 32 (which we have already extracted above) that the principles enunciated in the judgments show as to when a right accrues to a party under a repealed Act. The Supreme Court observed that it is not necessary that for the right to accrue, legal proceedings must be pending when the new Act comes into force. Furthermore, and more importantly, the Supreme Court observed that to have the award enforced when arbitral proceedings commenced under the old Act under that very Act was certainly an accrued right. In other words, all the aspects of enforceability of an award entail an accrued right both in the person in whose favour the award is made and against whom the award is pronounced. It will also be noticed that the Supreme Court made it clear that for the right to accrue, there is no necessity that legal proceedings must be pending when the new Act comes into force. This exactly covers the situation as obtaining in the second category of cases, where the arbitral proceedings were commenced prior to 23.10.2015 and the award was also made prior to 23.10.2015, but the petition under Section 34 had not yet been filed. This is the same situation as in the present case. Thus, the pendency of any legal proceedings or otherwise would not come in the way of determining as to whether the right had accrued under the unamended provisions or not. We have already noted that the Supreme Court in Thyssen (supra) observed that the right to have the award enforced (which also comprises of the negative right of the award debtor to not have it enforced till his objections under Section 34 of the said Act are heard and decided) is certainly an accrued right. Given the fact that the amended Section 36 takes away the right of an automatic stay of enforcement of an award, it is clear that the amendment introduced in Section 36 by virtue of the Amending Act would definitely impinge upon the accrued right of the party against whom the award is given after the arbitral proceedings have been held under the unamended provisions. Since an accrued right is affected, unless a contrary intention appears in the amending statute, the amendments would have to be treated as prospective in operation. Prospective from the standpoint of commencement of the arbitral proceedings.

IN THE HIGH COURT OF CALCUTTA

E.C. No. 1 of 2017

Decided On: 28.06.2017

 Braithwaite Burn & Jessop Construction Co. Ltd. Vs.  Indo Wagon Engineering Ltd.

Hon'ble Judges/Coram:

Soumen Sen, J.

Citation: AIR 2017(NOC) 923 Cal

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Whether appellate court can stay eviction order with condition to deposit entire arrears of rent as claimed by landlord?

The jurisdiction of Rent Control Appellate Authority in granting stay of the operation of the order of eviction granted by the Rent Control Court should be understood under this perspective. The Rent Control Appellate Authority is expected to exercise its jurisdiction in consonance with the Act and cannot exceed its jurisdiction while granting stay orders in Rent Control Appeals preferred against the orders of the Rent Control Court. A direction to deposit the entire arrears of rent, as claimed by the landlord, or a direction to deposit any amount exceeding the admitted arrears of rent would be outside the jurisdiction vested with the Rent Control Appellate Authority while dealing with an appeal under the Act. Hence, the direction issued by the Rent Control Appellate Authority without specifying whether it is an admitted arrears of rent or the arrears of rent as claimed by the landlord, does not reflect proper application of jurisdiction vested in it. Hence, the conditions embodied in the order of stay are hereby deleted and excluded.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

O.P. (RC) No. 169 of 2016

Decided On: 20.06.2017

 Jose P.O. Vs. Xavier and Ors.

Hon'ble Judges/Coram:

K. Harilal and P. Somarajan, JJ.

Citation: AIR 2017 (NOC) 898 kerala

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When court should not stay execution of decree?

I have carefully considered the submissions advanced by the learned Counsel appearing for the respective parties. Since the impugned order is passed under Order XXI Rule 29 of the Code, I deem it appropriate to reproduce the said provision, which reads thus, -

"29. Stay of execution pending suit between decree holder and judgment debtor.- Where a suit is pending in any court against the holder of a decree of such court or of a decree which is being executed by such court, on the part of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided:

Provided that if the decree is one for payment of money, the court shall, if it grants stay without requiring security, record its reasons for so doing."

9. In the case of Shaukat Hussain (cited supra), one of the questions for consideration before the Hon'ble Supreme Court was, - In what circumstances the execution of the decree can be stayed under Order XXI Rule 29 of the C.P.C." While deciding the said issue, the Hon'ble Apex Court in Para 6 of the said judgment, has held thus, -

"6. Order XXI, Civil Procedure Code deals generally with the execution of decrees and orders. That order is divided into several topics, each topic containing a number of rules. The first four topics cover rules 1 to 25 and the fifth topic, namely, stay of execution comprises 4 rules, namely, rules 26 to 29. A perusal of these rules will show that the first three rules i.e. rules 26 to 28 deal with the powers and duties of a court to which decree has been sent for execution. Under rule 26, that court can stay the execution of the decree transferred to it for execution for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed or to any court having appellate jurisdiction over the former for an order to stay execution or for any other order relating to the decree or execution which might have been made by the court of first instance or the appellate court. It will be seen, therefore, that under rule 26 the transferee court has a limited power to stay execution before it. Moreover, under sub-rule (2) if any property is seized by it in the course of execution, it may even order the restitution of the property pending the result of the application made by the judgment-debtor to the court of the first instance or to the appellate court. Rule 27 says that any such restitution made under sub-rule (2) of rule 26 will not prevent the property of the judgment-debtor from being retaken in execution of the decree sent for execution. Rule 28 provides that any order of the court by which the decree was passed, in relation to the execution of such decree, shall be binding upon the court to which the decree was sent for execution. And then we have rule 29 which deals with a different situation. The rule is as follows :

"Where a suit is pending in any court against the holder of a decree of such court, on the part of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided."

It is obvious from a mere perusal of the rule that there should be simultaneously two proceedings in one court. One is the proceeding in execution at the instance of the decree-holder against the judgment-debtor and the other a suit at the, instance of the judgment-debtor against the decree-holder. That is a condition under which the court in which the suit is pending may stay the execution before it. If that was the only condition, Mr. Chagla would be right in his contention, because admittedly there was a proceeding in execution by the decree-holder against the judgment-debtor in the court of Munsif 1st Gaya and there was also a suit at the instance of the judgment-debtor against the decree holder in that court. But there is a snag in that rule. It is not enough that there is a suit pending by the judgment-debtor, it is further necessary that the suit must be against the holder of a decree of such court. The words "such court" are important. "Such court" means in the context of that rule the court in which the suit is pending. In other words, the suit must be one not only pending in that court but also one against the holder of a decree of that court. That appears to be the plain meaning of the rule."

10. As has been observed by the Hon'ble Apex Court for invoking Order XXI Rule 29 of the Code, there should be simultaneously two proceedings in one court. One is the proceeding in execution at the instance of the decree-holder against the judgment-debtor and the other a suit at the, instance of the judgment-debtor against the decree-holder. In the instant petition, Regular Civil Suit No. 73/2013 is admittedly pending in the court other than the court wherein Regular Darkhast No. 4/2015 is pending. Moreover, Regular Civil Suit No. 73/2013 is not filed by the present respondents, i.e. judgment debtors in Regular Darkhast No. 4/2015. Moreover it is also not in dispute that R.C.S. No. 73/2013 is not against the decree-holder of R.D. No. 4/2015 and he is only a formal party to the said suit. Thus, none of the requirements is satisfied so as to invoke the provisions under Order XXI Rule 29 of the Code. Regular Civil Suit No. 73/2013 is filed by wife of the present petitioner against the present respondents seeking partition and separate possession of the ancestral property, wherein the petitioner - decree holder is a formal party.

11. The learned Civil Judge, Junior Division, while passing the impugned order, has failed in appreciating the facts, as aforesaid, and has also failed in understanding the import of the provision under Order XXI Rule 29 of the Code. The impugned order, therefore, cannot be sustained and deserves to be set aside.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 11991 of 2015

Decided On: 05.04.2017

 Balasaheb Vs. Anil and Ors.

Hon'ble Judges/Coram:

P.R. Bora, J.

Citation : 2017 (4)MhLj 399

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Whether a person can be precluded from challenging the order if he has obtained stay to its execution?

It is now trite that the principle of estoppel has no application when statutory rights and liabilities are involved. It cannot imped right of appeal and particularly the constitutional remedy. The House of Lords has considered the same question in Evans vs. Bartlam (1937 2 All E.R.

646). The House was dealing with an order of the Court of Appeal whereby Scott L.J. approved the contention of a party to put the matter on the rule of election on the premise that the defendant knew or must be presumed to know that he had the right to apply to set the judgment aside and by asking for and obtaining time he irrevocably elected to abide by the judgment. Lord Atkin, reversing the above view, has observed thus:

" My Lords, I do not find myself convinced by these judgments. I find nothing in the facts analogous to cases where a party, having obtained and enjoyed material benefit from a judgment, has been held precluded from attacking it while he still is in enjoyment of the benefit. I cannot bring myself to think that a judgment debtor, who asks for and receives a stay of execution, approbates the judgment, so as to preclude him thereafter from seeking to set it aside, whether by appeal or otherwise. Nor do I find it possible to apply the doctrine of election."

Lord Russell of Killowen while concurring with the aforesaid observations has stated thus:

"My lord, I confess to a feeling of some bewilderment at the theory that a man who, so long as it stands, must perforce acknowledge and bow to a judgment of the court regularly obtained), by seeking and obtaining a temporary suspension of its execution, thereby binds himself never to dispute its validity or its correctness, and never to seek to have it set aside or reversed. If this were right, no defeated litigant could safely ask his adversary for a stay of execution pending an appeal, for the grant of the request would end the right of appeal. The doctrine of election applies only to a man who elects with full knowledge of the facts."

A party to a lis can be asked to give an undertaking to the court if he requires stay of operation of the judgment. It is done on the supposition that the order would remain unchanged. By directing the party to give such an undertaking no court can scuttle or foreclose a statutory remedy of appeal or revision, much less a constitutional remedy. If the order is reversed or modified by the superior court or even the same court on a review the undertaking given by the party will automatically cease to operate. merely because a party has complied with the directions to give an undertaking as a condition for obtaining stay he cannot be presumed to communicate to the other party that he is thereby giving up his statutory remedies to challenge the order. No doubt he is bound to comply with his undertaking so long a s the order remains alive and operative. However, it is open to such superior court to consider whether the operation of the order or judgment challenged before it need be stayed or suspended having regard to the fact that the concerned party has given undertaking in the lower court to abide by the decree or order within the time fixed by that court.

We are, therefore, in agreement with the view of Sahai and Venkatachala, JJ, that the appeal filed under Article 136 of the Constitution by special leave cannot be dismissed as not maintainable on the more ground that appellant has given an undertaking to the High Court on being so directed, in order to keep the High Court's order in abeyance for some time.

IN THE SUPREME COURT OF INDIA

C. A. No. 4587 of 1995

Decided On: 11.08.1998

 P.R. Deshpande Vs.  Maruti Balaram Haibatti

Hon'ble Judges/Coram:

M.M. Punchhi, CJI., K.T. Thomas and S.S.M. Quadri, JJ.

Citation: (1998) 6 SCC 507

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