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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Bombay HC: Order of stay of criminal proceeding is final order and hence revision is maintainable against said order

 These cardinal principles will have to be taken into consideration while deciding the controversy raised before us, as well as the nature of the order. It cannot be forgotten that in a given case, such a stay of criminal case, can be granted even at the instance of complainant. When criminal prosecution is stayed for an indefinite period, i.e. pending the decision of a civil suit, it affects substantive rights of the parties i.e. complainant as well as accused. It is common knowledge that the civil suit often drags on for years together. Thus stay of criminal prosecution till the decision of the civil suit practically amounts to suspension of the proceedings for an indefinite period. It is not merely an order of adjournment. Such an order clearly disturbs normal procedure of trial and affects substantive rights of the parties. The order of the Judicial Magistrate staying the criminal prosecution for an indefinite period was undoubtedly a matter of moment, and affects the valuable right of the complainant to proceed with the criminal case. Therefore we have no hesitation in holding that it cannot be treated as an interlocutory order and hence the bar under section 397(2) of the Code will not apply to such an order. Therefore we agree with the view taken by Shimpi J. in Criminal Application No. 452 of 1975 dated 9th December 1977 and overrule the view taken by Khatri J. in M/s. Bush India Ltd. & anr's case.

Bombay High Court

C. S. DHARMADHIKARI AND V. V. VAZE, JJ.

BOMBAY MUNICIPAL CORPORATION, BOMBAY vs. SURESH U. GUPTA

Cri. Writ Petns. Nos. 530 of 1984

5th September, 1985.

Citation: 1985 ALLMR ONLINE 435

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Supreme Court: What conditions the Appellate court should impose while staying execution of money decree?

11. To the same effect is the decision of this Court in Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai & Co.   MANU/SC/0315/2005 : (2005)4SCC1 , wherein it was held:

6. Order XLI Rule 1(3) of the CPC provides that in an appeal against a decree for payment of amount the appellant shall, within the time permitted by the Appellate Court, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. Under Order XLI Rule 5(5) a deposit or security, as abovesaid, is a condition precedent for an order by the Appellate Court staying the execution of the decree. A bare reading of the two provisions referred to hereinabove, shows a discretion having been conferred on the Appellate Court to direct either deposit of the amount disputed in the appeal or to permit such security in respect thereof being furnished as the Appellate Court may think fit. Needless to say that the discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a given case. 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. Still the power is there, of course, a discretionary power and is meant to be exercised in appropriate cases.

 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.

Author: S.B. Sinha, J.

Citation: AIR 2009 SC 1581.

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What principles the appellate court should follow while deciding stay application in appeal preferred against money decree?

11. To the same effect is the decision of this Court in Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai & Co., [MANU/SC/0315/2005 : 2005(2) RCR (Civil) 672 : (2005)4 SCC 1], wherein it was held:-

"6. Order 41 Rule 1(3) of the Civil Procedure Code provides that in an appeal against a decree for payment of amount the appellant shall, within the time permitted by the Appellate Court, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. Under Order 41 Rule 5(5) a deposit or security, as abovesaid, is a condition precedent for an order by the Appellate Court staying the execution of the decree. A bare reading of the two provisions referred to hereinabove, shows a discretion having been conferred on the Appellate Court to direct either deposit of the amount disputed in the appeal or to permit such security in respect thereof being furnished as the Appellate Court may think fit. Needless to say that the discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a given case. 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. Still the power is there, of course, a discretionary power and is meant to be exercised in appropriate cases."

 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR No. 5598 of 2023

Decided On: 09.01.2024

Sandeep Kumar Vs. Desh Raj and Ors.

Hon'ble Judges/Coram:

Sudeepti Sharma, J.

Citation:  MANU/PH/0526/2024.

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Supreme Court: What three aspects are to be considered while granting stay?

While granting stay, this Court must consider three aspects-

(i) Balance of convenience

(ii) Irreparable harm or injury

(iii) That there is a prima facie case.{Para 9}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8899 of 2019

Decided On: 15.11.2019

State of Mizoram and Ors. Vs. Pooja Fortune Pvt. Ltd.

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

Author: Deepak Gupta, J.

Citation:  MANU/SC/1883/2019.

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Whether Appellate court has the power to make any consequential or incidental order in an appeal filed U/S 373 of CRPC?

 386. Powers of the Appellate Court.—After

perusing such record and hearing the appellant or

his pleader, if he appears, and the Public

Prosecutor if he appears, and in case of an appeal

under section 377 or section 378, the accused, if he

appears, the Appellate Court may, if it considers

that there is no sufficient ground for interfering,

dismiss the appeal, or may—

(a) in an appeal from an order or acquittal, reverse

such order and direct that further inquiry be made,

or that the accused be re-tried or committed for

trial, as the case may be, or find him guilty and

pass sentence on him according to law;

(b) in an appeal from a conviction—

(i) reverse the finding and sentence and acquit or

discharge the accused, or order him to be re-tried

by a Court of competent jurisdiction subordinate

to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the

nature or the extent, or the nature and extent, of

the sentence, but not so as to enhance the

same—

(c) in an appeal for enhancement of sentence—

(i) reverse the finding and sentence and acquit or

discharge the accused or order him to be re-tried

by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the

nature or the extent, or, the nature and extent, of

the sentence, so as to enhance or reduce the

same;

(d) in an appeal from any other order, alter or

reverse such order;

(e) make any amendment or any consequential or

incidental order that may be just or proper:

Provided that the sentence shall not be enhanced

unless the accused has had an opportunity of

showing cause against such enhancement:

Provided further that the Appellate Court shall

not inflict greater punishment for the offence which

in its opinion the accused has committed, than

might have been inflicted for that offence by the

Court passing the order or sentence under appeal.

The very use of the words “and in case of an appeal under

section 377 or section 378” means that the said provision

being generally applicable to all kinds of appeals under

Chapter-XXIX also applies to appeals filed under Sections

377 and 378 Cr.P.C. This would be further evident from a

reading of clause (d) conferring power on the appellate

Court to alter or reverse order passed in an “appeal against

any other order”. So, clause (a) relates to appeal from an

order of acquittal, clause (b) relates to appeal from a

conviction and clause (c) relates to appeal for enhancement

of sentence. The expression “appeal from any other order”

in clause (d) is obviously wide enough to include all appeals

including those provided under clauses (a), (b) and (c) and

therefore, shall include an appeal under Section 373 also.

Clause (e) is a general power available to the Court dealing

with all kinds of appeals. Thus, in an appeal under Section

373 of Cr.P.C. the appellate Court has the power to make

any consequential or incidental order that may be just or

proper. Obviously, this power includes the power to stay

the operation of the order impugned in the appeal. The

reasoning of the Court below that power given under

Section 386 Cr.P.C. is only meant for appeal under Section

377 or 378 Cr.P.C., is clearly erroneous.

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLMC No. 1284 of 2023

Application under Section 482 of Criminal Procedure Code,

1973.

Mamata Sahoo  Vs  State of Odisha 

CORAM:

JUSTICE SASHIKANTA MISHRA

Dated: 11th April, 2023

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Can the tenant refuse to pay rent in the absence of a specific clause in that regard in the sale agreement?

It is settled position of law that an agreement holder who is the tenant of the property should continue to pay the rent, unless there is a specific clause in the sale agreement that the tenant need not pay the rent from the date of sale agreement. Hence, the contention of the learned counsel for the petitioner that the jural relationship of the landlord and tenant had got terminated due to the sale agreement is not legally sustainable. {Para 8}

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

C.R.P.(MD).No.323 of 2023 and CMP(MD).No.1537 of 2023

K.Jeyakumar  Vs L.Arunachalam 

CORAM

 MR.JUSTICE R.VIJAYAKUMAR

DELIVERED ON: 13 .02.2023

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Whether Filing Of Appeal Would Operate As A Stay Of Decree?

 Though, such contention is put forth by the respondents, keeping in view the provisions as contained in Order 41 Rule 5 of CPC, unless the appeal is listed and there is an interim order, the mere filing of the appeal would not operate as a stay. If that be so, the judgment and decree dated 25.08.2021 would enure to the benefit of the petitioner as on today and the rejection of the NOC only on the ground that the appeal has been filed, would not be justified. In that view, the High Court was also not justified in rejecting the petition.

IN THE SUPREME COURT OF INDIA

Special Leave to Appeal (C) No(s). 19038/2022 

SANJIV KUMAR SINGH Vs THE STATE OF BIHAR & ORS.

Coram: A.S. BOPANNA; J., HIMA KOHLI; J.

Dated: 24-01-2023

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Are directions of the Supreme Court in Asian Resurfacing of Road Agency Private Limited applicable to interim orders that do not stay the trial of civil or criminal cases?

 To be more specific, the issue as urged by the petitioner is as to whether the observations of the Supreme Court in paragraph 36 of its decision in "Asian Resurfacing of Road Agency' case, can be construed to mean that in cases wherein interim orders in the nature of stay or injunction are passed and which have continued to remain in operation for more than six months, would stand automatically vacated after a period of six months of such orders being passed. {Para 10}

40. In conclusion, it needs to be observed that the directions of the Supreme Court in paragraph 36 and 37 in Asian Resurfacing of Road Agency Private Limited, operate only qua the criminal and civil cases pending trial, and such directions cannot be construed to be applicable to the other category of orders in proceedings which do not stay the trial of the civil or criminal cases as observed in paragraph 30 above. Such orders of the Supreme Court are also not applicable to the proceedings before the Tribunals. Thus, the tribunal was not correct in passing the impugned order as also applying the government circular dated 6 May, 2021.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5483 of 2021

Decided On: 18.04.2022

 Devsing Ramchandra Chavan  Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

G.S. Kulkarni, J.

Citation: MANU/MH/1337/2022

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How to ascertain mesne profits or compensation while staying execution of eviction decree?

 Now, reverting on the issue of determination of the amount of

mesne profits @ Rs.2,50,000/per month is concerned, the guidance may be taken from the judgment of Marshall Sons & Co. (I) Ltd. vs. Sahi Oretrans (P) Ltd. and Another – (1999) 2 SCC 325, in which this Court held that once a decree for possession has been passed and the execution is delayed depriving the decree holder to reap the fruits, it is necessary for the Appellate Court to pass appropriate orders fixing reasonable mesne profits which may be equivalent to the market rent required to be paid by a person who is holding over the property. In the case of Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. – (2005) 1 SCC 705, this Court held that Appellate Court does have jurisdiction to put reasonable terms and conditions as would in its opinion reasonable to compensate the decree holder for loss occasioned by delay in execution of the decree while granting the stay. The Court relying upon the provisions of the Delhi Rent Control Act, observed that on passing the decree for eviction by a competent Court, thetenant is liable to pay mesne profit or compensation for use and occupation of the premises at the same rate at which the landlord would have able to let out the premises in present and earn the profit if the tenant would have vacated the premises. The Court has explained that because of pendency of the appeal, which may be in continuation of suit, the doctrine of merger does not have effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a later date. {Para 10}

11. Thus, after passing the decree of eviction the tenancy

terminates and from the said date the landlord is entitled for mesne profits or compensation depriving him from the use of the premises. The view taken in the case of Atma Ram (supra) has been reaffirmed in the case of State of Maharashtra vs. Super Max International Pvt. Ltd. and others (2009) 9 SCC 772 by threeJudges Bench of this Court. 

12. The basis of determination of the amount of mesne profit, in

our view, depends on the facts and circumstances of each case

considering place where the property is situated i.e. village or city or metropolitan city, location, nature of premises i.e. commercial or residential are and the rate of rent precedent on which premises can be let out are the guiding factor in the facts of individual case.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 464647 OF 2022

M/s. Martin & Harris Private Limited & Anr. Vs Rajendra Mehta & Ors. 

Author: J.K. Maheshwari, J.

Dated: July 06, 2022

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What is the court's duty when the proceeding in which a stay granted to recover money is dismissed?

  Following the said decision, this Court in Kanoria Chemicals and Industries Ltd. and Others v. U.P. State Electricity Board and Others, (1997) 5 SCC 772 has held that an order of stay which is granted during the pendency of a writ petition/suit or other proceeding comes to an end with the dismissal of the substantive proceedings and it is the duty of the court in such cases to put the parties in the same position that they would have been in but for the interim order of the court. In that case, this Court rejected the contention that when the operation of the notification itself was stayed, no surcharge could be demanded upon the amount withheld. It was held thus:

“11. …. Holding otherwise would mean that even though the Electricity Board, who was the respondent in the writ petitions succeeded therein, yet deprived of the late payment surcharge which was due to it under the tariff rules/regulations. It would be a case where the Board suffers prejudice on account of the orders of the court and for no fault of its. It succeeds in the writ petition and yet loses. The consumer files the writ petition, obtains stay of operation of the notification revising the rates and fails in his attack upon the validity of the notification and yet he is relieved of the obligation to pay the late payment surcharge for the period of stay, which he is liable to pay according to the statutory terms and conditions of supply — which terms and conditions indeed form part of the contract of supply entered into by him with the Board. We do not think that any such unfair and inequitable proposition can be sustained in law.

xxx xxx xxx

It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim orders of the court. Any other view would result in the act or order of the court prejudicing a party (Board in this case) for no fault of its and would also mean rewarding a writ petitioner in spite of his failure. We do not think that any such unjust consequence can be countenanced by the courts. As a matter of fact, the contention of the consumers herein, extended logically should mean that even the enhanced rates are also not payable for the period covered by the order of stay because the operation of the very notification revising/enhancing the tariff rates was stayed. Mercifully, no such argument was urged by the appellants. It is un-understandable how the enhanced rates can be said to be payable but not the late payment surcharge thereon, when both the enhancement and the late payment surcharge are provided by the same notification — the operation of which was stayed.”{Para 19}

20. In Rajasthan Housing Board and Others v. Krishna Kumari, (2005) 13 SCC 151 this Court observed that Order 39 of the Civil Procedure Code, 1908 provides for grant of temporary injunction at the risk and responsibility of the person who obtains it and, if ultimately case is decided against such person, he would be liable to pay interest on the arrears of any amount due which had been stayed by the injunction order. The legal maxim actus curiae neminem gravabit, which means that an act of the Court shall prejudice no man, becomes applicable in such a case.

21. In South Eastern Coalfields Ltd. V. State of M.P. and Others, (2003) 8 SCC 648 the writ petitioner therein had argued that interest accrued due to nonpayment of enhanced amount of royalty was protected by a judicial order of an interim nature and, therefore, merely because the writ was finally dismissed, the writ petitioner should not be held liable for payment of interest so long as money was withheld under the protective umbrella of the injunction order. This submission was rejected by this Court by holding as under:

“The principle of restitution has been statutorily recognized in Section 144 of the Code of Civil Procedure, 1908. Section 144 CPC speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on a par with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of a final decision going against the party successful at the interim stage. Unless otherwise ordered by the court, the successful party at the end would be justified with all expediency in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost; and it is the duty of the court to do so unless it feels that in the facts and on the circumstances of the case, the restitution far from meeting the ends of justice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim order of the court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the court at the stage of final decision, the court earlier would not or ought not to have passed. There is nothing wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed.”

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO. 2417 OF 2022 

 STATE OF U.P. THR. SECRETARY AND ORS. Vs PREM CHOPRA

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Whether the accused must obtain the trial court's permission to renew the passport if a higher court stays the criminal proceeding?

Arguably, case of the petitioner falls into this category. Be that as it may. (c) The impugned Endorsement is structured on the ground that a criminal case is pending inter alia against the petitioner in C.C.No.11606/2020, in the Court of learned

XVII ACMM, Bengaluru City. The same having been challenged in W.P.No.14431/2020, a Co-ordinate Bench of this Court has stayed all further proceedings before the Trial judge vide interim order dated 10.12.2020, is not in dispute. That being the position, the respondent- RPO is not justified in asking the petitioner to go the Trial the learned Trial

Judge to seek permission to travel aboard in the ‘stayed proceedings’. The Notification dated 25.08.1993 purportedly issued under Section 22 of the Act, normally expects an

order of the kind and this norm is applicable in ordinary circumstances, in the sense that the criminal proceedings are not stayed and hands of the Trial Judge are free to work, and not in the circumstances that have tied his hands. A contention to the

contrary amounts to asking the citizen to do an impossible act. Ordinarily, an act impossible of performance is treated as either having been accomplished or waived vide lex non cogit ad impossibilia which Maxwell on Interpretation of Statutes, 12th

Edition, Butterworths Wadhwa at pages 326 to 328 extensively discusses. Thus, the insistence on production of an order as mentioned in the impugned Endorsement is not justified.

IN THE HIGH COURT OF KARNATAKA, BENGALURU

WRIT PETITION NO.19203 OF 2021(GM-PASS); 

KASTURI RAJUPETA v. UNION OF INDIA

BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

Dated:17 MARCH, 2022

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Whether Appellate court can stay operation of Judgment while granting stay as per O 41 R 5 of CPC?

Going by the plain meaning of Order XLI Rule 5,

it provides for only stay of the proceedings

under a decree or stay of execution of the

decree. The provision does not empower the

appellate court to stay the operation of the

judgment. Stay of operation of the judgment is

not the same as staying the operation of the

proceedings under a decree or staying the

execution of a decree. An order staying the

operation of the judgment will amount to staying

the findings in the judgment, which cannot be

done at the stage of admission.

6. In the impugned order, the appellate

court has indicated the reasons for granting the

order of stay. Therefore, I do not find any

force in the submission that the order is bad for

application of mind and lack of reasons. At the

same time, even on being convinced of the reasons

for granting stay, the appellate court could have

stayed only the proceedings under the decree or

execution of the decree and not, the operation of

the judgment.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 MR.JUSTICE V.G.ARUN

OP(C) NO. 963 OF 2021

RAVEENDRAN Vs  LALITHA

Dated this the 1st day of November, 2021

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How should Appellate court calculate interim compensation when staying eviction decree if vacant land was rented on which tenant has raised construction?

 So far as the question of compensation is concerned, Mr. Naidu is right that it cannot be based on the valuation of the building ‘Garment House’. After all, what was leased out was the land; the construction on the land, if any, made during the subsistence of the tenancy, was to belong to the lessee. Compensation can accordingly be based only on the value of the land, the fruits of which may be said to be lost unto the Plaintiffs as a result of the stay of the eviction decree obtained by them. There is another way of looking at the land value. The land may well be commercially exploited either by retaining the structure (since the terms of the lease permit such retention upon payment) or, alternatively, by demolishing the existing structure and constructing on the land. In either case, the landlord would have to incur capital cost by purchasing the building or paying for the new construction. In either premises, commercial letting of constructed premises cannot be the basis of valuation; it would have to be letting of land.{Para 8}

13 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.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO.357 OF 2017

Vijay Anant Gangan   Vs  Zenabibi Gulam Rasool And Others 

CORAM : S.C. GUPTE, J.

PRONOUNCED ON : 5 NOVEMBER 2020

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Whether the court can accept Immovable Property As Security For the Stay Of enforcement of an arbitral award?

On a conjoint reading of the above provisions it is clear that the

intention of the framers of the law, which is relevant for consideration in the present case, was to refrain from a strict requirement that security to be furnished for stay of a decree would only be in monetary terms. The intent of the

provision relating to stay of a money decree is that the applicant who seeks stay of a decree must furnish some sort of effective cushion for the decree-holder to fall back on in the event the challenge to the decree fails. In other words, the

purpose is to secure the decree-holder in a manner which would be conducive to the decree-holder enjoying the fruits of the decree in the long run. The other significant issue which is found in all the above provisions namely, Order XLI,

Order XXI of the CPC and Section 36(3) of the 1996 Act is the clear discretion given to a Court for deciding the conditions which may be imposed. The words used in Order XLI are “. . . as the Court may think fit” which is repeated in Order

XXI Rule 26 and Rule 29 as “. . . as it thinks fit”. The principles enshrined in the provisions relating to stay of a money decree must be imported to the proviso to Section 36(3) of the 1996 Act. The language of Section 36(3) imparts an equal

amount of discretion to the Court namely “. . . subject to such conditions as it may deem fit, grant stay of operation of such award . . .”. The only stated requirement is that the Court must indicate its reasons in writing for granting an order of stay

of the award in question.

Having regard to the relevant statutory provisions which may be

understood as guidelines in the proviso to Section 36(3), this Court is of the view that there is no statutory fetter on a Court to be hemmed in by requiring cash security, bank guarantees and the like.

IN THE HIGH COURT AT CALCUTTA

Ordinary Original Civil Jurisdiction

ORIGINAL SIDE

AP/82/2021

IA No.GA/1/2021

NITU SHAW  Vs  BHARAT HITECH (CEMENTS) PRIVATE LIMITED

BEFORE :

The Hon’ble JUSTICE MOUSHUMI BHATTACHARYA

Date : 19th March, 2021

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Supreme Court Stays Bombay HC Judgment Which Held 'Skin To Skin' Contact Necessary For 'Sexual Assault' Under POCSO Act

 Mr. K. K. Venugopal, learned Attorney General for India, made

a mention, bringing to our notice a judgment dated 19.01.2021

passed by the High Court of Judicature at Bombay, Nagpur Bench, in

Criminal Appeal No.161/2020 wherein the High Court has apparently

acquitted the accused under Section 8 of the POCSO Act, 2012 on the

ground that the accused had no sexual intent in committing the

offence under POCSO Act because there was no direct phyical

contact, i.e., skin to skin.

Mr. Venugopal, learned Attorney General, submitted that the

judgment in question is likely to set a dangerous precedent.

In view of what is stated, we permit the learned Attorney

General to file an appropriate petition against the said judgment.

In the meantime, we stay the acquittal of the accused in

Criminal Appeal No.161/2020 in respect of the offence under section 8 of the POCSO Act.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

SPECIAL LEAVE PETITION (CRIMINAL) Diary No(s). 2286/2021

(Arising out of impugned final judgment and order dated 19-01-2021

in CRLA No. 161/2020 passed by the High Court Of Judicature At

Bombay At Nagpur)

ATTORNEY GENERAL FOR INDIA  Vs SATISH & ANR. 

Date : 27-01-2021

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Whether trial court can stay execution of decree till disposal of appeal?

 As per Ext.P11, the court below stayed the execution petition till the disposal of the appeal. The application was filed under Order 21 Rule 26 CPC. It is settled law that Order 21 Rule 26 CPC is applicable only to transfer decree. The proper provision is Order 41 Rule 5(2). It is clear that the power of the execution court to stay the execution is only upto to the stage of filing the appeal. In this case, the appeal was already OP(C).No.52 OF 2020 filed. Since the appeal was already filed, the court below had no jurisdiction to stay the execution petition in the absence of any order from the appellate court. In view of the above, Ext.P11 cannot be also sustained.

Kerala High Court

Syamala vs Thapodhanan on 22 January, 2020

Coram:  MR. JUSTICE B.SUDHEENDRA KUMAR

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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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Whether lower court can refuse to proceed with the trial of case after expiry of six months if high court has not vacated the stay?

we are

constrained to point out that in our directions contained in the

judgment delivered in Criminal Appeal Nos. 1375-1376 of 2013 [Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. vs. Central Bureau of Investigation] and, in particular, para 35, it is stated thus:

“35. … …. 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.”

Learned Additional Chief Judicial Magistrate, Pune, by his

order dated 04.12.2019, has instead of following our judgment in

letter as well as spirit, stated that the Complainant should move

an application before the High Court to resume the trial. The

Magistrate goes on to say: “The lower Court cannot pass any order

which has been stayed by the Hon’ble High Court, Bombay with due

respect of ratio of the judgment in Asian Resurfacing of Road

Agency Pvt. Ltd. & Anr. (supra).” We must remind the Magistrates

all over the country that in our pyramidical structure under the

Constitution of India, the Supreme Court is at the Apex, and the

High Courts, though not subordinate administratively, are certainly

subordinate judicially. This kind of orders fly in the face of

para 35 of our judgment. We expect that the Magistrates all over

the country will follow our order in letter and spirit. Whatever

stay has been granted by any court including the High Court

automatically expires within a period of six months, and unless

extension is granted for good reason, as per our judgment, within

the next six months, the trial Court is, on the expiry of the first

period of six months, to set a date for the trial and go ahead with

the same.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

MISCELLANEOUS APPLICATION NO. 1577 OF 2020

IN

CRIMINAL APPEAL NOS. 1375-1376 OF 2013

ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. Vs 

CENTRAL BUREAU OF INVESTIGATION 

Dated: October 15, 2020.

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Whether the court can stay the application of the husband for custody or access to the child until he pays interim maintenance to his wife and child?

1) Finally, I cannot forget the fact that here is before me a father, who refuses to fork out the amount, which the competent Court has determined as justly due and payable towards maintenance of the wife and child. It is not in dispute that the arrears of the interim maintenance have accumulated to about Rs. 1,40,000/- till today. Interim maintenance is made payable, so that the wife and child can sustain themselves.

2) After much anguishing soul-searching, I have reached the painful conclusion that, for reasons more than one, the petitioner must be denied access to the child until he displays evidence of contrition, penitence and reform; in shori, until he pays up the arrears of interim maintenance and shows readiness to pay from month to month the amounts ordered, I do not consider him a fit person whose influence should be allowed to rub off on the child.

24. In my view, for the aforesaid reasons, it is necessary, in the interests of welfare, well-facing and all round beneficial development of the child, to deny the petitioner access to the child till such time, at least, that he reports, relents and becomes agreeable to comply with orders of the Courts.

25. In the result, the notice of motion is made absolute in terms of prayer (a), and it is made clear that the petitioner shall have no right of access to the minor child until he deposits with the Family Court all arrears of maintenance up-to-date, and gives an undertaking in writing to the Court that he shall continue to abide by the order of the Court from month to month.

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 1554 of 1992 in Interim Petn. No. 32 of 1990 in Custody Petn. No. 31 of 1990

Decided On: 24.07.1992

Vinodchandra Gajanan Deokar  Vs. Anupama Vinodchandra and Ors.

Hon'ble Judges/Coram:

B.N. Srikrishna, J.

Citations: AIR 1993 Bom 232, 1992 (3) BomCR 129, I (1993) DMC 537

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