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

Print Page

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

Print Page

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

Print Page

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.

Print Page

Supreme Court: Maintenance order passed under S 125 of CRPC should be stayed in exceptional circumstances

 We are constrained to observe that this order

shows total non-application of mind on the part of

the High court. This was a case where maintenance

had been granted to a wife and to a minor son. The

High Court without recording any reason whatsoever,

has stayed the grant of maintenance both to the wife

and to the minor son. This should not be done. A

husband/father is duty bound to maintain his wife and

child. Unless there are very special reasons, the

higher Court should not normally stay such an order.

In the present case no reason has been mentioned

justifying the grant of the stay order.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1399 OF 2019

PRATIMA DEVI Vs  ANAND PRAKASH 

Dated: SEPTEMBER 16, 2019.

Print Page

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

Print Page

Whether High court can stay an order before it is passed by subordinate court?

 In our considered view, the High Court ought
not to have issued directions of this nature. It was
legally not permissible to do so. Indeed, the High
Court by issuing such directions which are
essentially passed in anticipation of the order being
passed by an appellate authority, interfered with the
judicial independence of an appellate authority in
deciding the appeals in accordance with law.
73) It is the sole discretion of the appellate authority
under the Act to decide the appeal based on the facts
involved in the appeal, and legal provisions which

eventually result in passing a judicial order. No
higher court can pass such directions merely on
anticipation of an order being passed by an appellate
authority. It is only after the order is passed, that
the aggrieved person has a legal right to take
recourse to a legal remedy available in law against
such order by approaching to a higher forum and
pray for grant of appropriate relief against such
order.
74) This stage in this case is yet to arrive. The High
Court should not have, therefore, preempted
the
passing of any order of the appellate authority, while
deciding the Writ Petition. It is a settled law that the
Court can stay or quash only those orders, which are
impugned in the lis before it. A fortiori, the Court
cannot stay or/and quash the orders in anticipation,
before they are passed. We cannot, therefore, uphold
such writ/directions issued by the High Court.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.126-156
OF 2019

Manish S. Pardasani Vs  Inspector State Excise, P1,Division, Mumbai(Suburbs)

Abhay Manohar Sapre, J.
Dated:January 7, 2019

Print Page

Whether case can be remanded if justifiable reason is not given for grant or rejection of interim stay?

 The reason to remand the case has occasioned due to the fact that firstly, no adequate reason is given in the impugned order for not granting stay; and secondly, the reason given does not in itself justify the rejection having regard to the nature of controversy involved in the writ petition.

9. In short, justifiable reason(s) to support either the grant or rejection need(s) to be stated keeping in view the facts and the law applicable to the controversy involved. It is not so found in the impugned order and hence the order of remand is called for to decide the matter afresh in accordance with law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8376 of 2018 (Arising out of SLP (C) No. 21546 of 2017)

Decided On: 20.08.2018

Birwati Chaudhary  Vs. The State of Haryana and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and U.U. Lalit, JJ.

Print Page

Whether interim maintenance granted to child can be stayed if he is not ready to meet his father?

The only remedial measure in such situation is to counsel
the child so that he will be ready to have access with his father but
staying the order of interim maintenance and thereby depriving him
from the essential requirements of the life cannot be called a legal,
equitable or correct. After all the grant of maintenance is for his
survival and such order of maintenance cannot be conditional, in the
way that if the child refuses to have access to his father, he will not
be entitled to maintenance. The impugned order passed by the
Family Court linking payment of maintenance to the access of child
being not justified or legal needs to be set-aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11308 OF 2015

Uma Ashish Ghate  V/s. Ashish Anil Ghate 

CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATED : 9th OCTOBER, 2017.
Citation: 2018(4) MHLJ 365

Print Page

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

Print Page

Notes on Civil appeal

APPEALS FROM ORIGINAL DECREE: S 96-99A .Order 41 of CPC.

The word appeal has not been defined in the code. The term refers to the removal of cause from an inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court. It is thus a remedy provided by law for getting the decree of lower court nullified, and is in fact,a complaint made to a higher court that the decree of lower court is unsound and wrong. An appeal must be preferred against

the whole decree and not any item or items in it. An appeal is only a continuation of original proceedings and it is a stage in the suit itself.

S 96 of CPC lays down four primary rules regarding appeals from original decree as follows:

1) Unless otherwise provided, an appeal lies from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from decisions of such a court.

2) An appeal can be even from an exparte decree.

3) However,no appeal lies from a consent decree.

4) Except on a question of law,no appeal lies from a decree in any suit cognizable by a small causes court,if value of subject matter of original suit does not exceed Rs. Ten Thousand.

Print Page

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

Print Page

Supreme Court: Precaution to be taken by Court while passing injunction order and stay order

On this occasion, we must refer to the mechanical manner in which some of the courts have been granting interim orders - injunctions and stay orders without realizing the harm such mechanical orders cause to the other side and in some cases to public interest. It is no answer to say that "let us make the order and if the other side is aggrieved, let it come and apply for vacating it". With respect, this is not a correct attitude. Before making the order, the court must be satisfied that it is a case which calls for such an order. This obligation cannot be jettisoned and the onus placed upon the respondents/defendants to apply for vacating it.

Supreme Court of India

Delhi Development Authority vs Skipper Construction Company(P) ... on 6 May, 1996

Equivalent citations: 1996 AIR 2005, 1996 SCC (4) 622

Print Page

Whether proceeding for grant of succession certificate can be stayed during pendency of civil suit?

The short question involved in this case is whether Section 10 of the Code of Civil Procedure, 1908 (for brevity, "the Code") is applicable to the proceedings initiated under Section 372 of the Indian Succession Act, 1925 (for brevity "the Act") for obtaining a succession certificate.

2. Brief facts of the case are that the successor-in-interest of the petitioner Paramjit Kumar was impleaded as defendant in Civil Suit No. 313 of 1996 filed on 8.9.1995 seeking declaration to the effect that he was entitled to his share in F.D. Rs. of Rs. 30,000/-, Rs. 50,000/- and locker maintained at State Bank of Patiala, Sector 22, Chandigarh. Defendant-respondent No. 1 Mrs. Kamal Seth did not contest the suit and she was proceeded ex parte. She, however, filed a succession case bearing No. 17/30.4.1998 under Section 372 of the Act for issuance of a succession certificate in respect of the same F.D.Rs. and locker mentioned herein above. The successor-in-interest of the petitioner contested the suit as well as succession case. The issues in both proceedings are similar, parties are the same and relief claimed in both the cases is also the same i.e. respective shares of the parties in the F.D.Rs. and locker. On that basis petitioner filed an application under Section 10 read with Section 151 of the Code for staying the trial/proceedings of the succession case during the pendency of the civil suit.

This can be examined from another angle. The grant of Succession Certificate falls under Part-X of the aforesaid Act. Its range is between Sections 370 to 390. It is significant to refer hereSection 387. This declares the effect of decisions made under this Act and the liability of holder of such certificate. It lays down that any decision made under this Part (Part-X) upon any question of right between the parties shall not bar the trial of the same question in any suit or other proceedings between the same parties. It further records that nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security to account therefore to the person lawfully entitled thereto. Section 387 is quoted hereunder:-

"Section 387 Effect of decisions under this Act, and liability of holder of certificate thereunder.- No decision under this part upon any question of right between any parties shall he held to bar the trial of the same question in any suit or in any other proceedings between the same parties, and nothing in this part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security or any interest or dividend on any security, to account therefore to the person lawfully entitled thereto.

16. This leaves no room for doubt. Thus any adjudication made under Part-X of this Act which includes Section 373 does not bar the same question being raised between the same parties in any subsequent suit or proceeding. This provision takes the decisions under Part-X of the Act outside the purview of Explanation VIII to Section 11. This gives protective umbrella to ward off from the rays of resjudicata to the same issue being raised in a subsequent suit or proceedings."

6. On the basis of the precedent as well as the principle, it has become evident that the proceedings, in a regular suit and the proceeding which are summary in nature contemplated bySection 372 of the Act are entirety different and the latter proceedings would not be covered bySection 10 of the Act. The object of issuance of a certificate and its effect is entirely different which would not result into deciding the issue finally between the parties. Therefore, there is no scope for interference in the impugned order and the petition is liable to be dismissed.

Punjab-Haryana High Court

Monica Bibli Sood vs Mrs. Kamal Seth And Ors. on 18 March, 2004

Equivalent citations: AIR 2004 P H 366, IV (2004) BC 539, (2004) 138 PLR 69

Bench: M Kumar

Print Page

Whether court should stay departmental enquiry pending criminal trial?

Having once noted the fact and circumstances so recorded above
and   also   the   fact   that   the   Petitioner   has   actually   participated   in   the
departmental inquiry and the departmental proceedings are complete, there
is   no   question   of   defence   of   the   Petitioner   of   criminal   charge   being
prejudiced.  The Department  as per the law can take own stand and pass
appropriate order as per the Regulations. Charges under the departmental
inquiry and the criminal complaint will not affect the outcome of each other.
The   criminal   proceedings,   even   if   are   pending,   need   to   proceed   in
accordance with law. The departmental inquiry and action even if completed
before the date of retirement, the Petitioner has a departmental remedy
available.   The Department, therefore, needs to consider the case of the
Petitioner in accordance with law.
In the circumstances where the Petitioner is admittedly retiring on
31 May 2016 and in view of the judgments so cited, it is necessary for the
Department to pass order and/or take action based upon the completed
inquiry   prior   to   his   retirement.     We   see   no   reason   to   stay   further   the
departmental inquiry now and the action based upon it, at this stage, as
contended by the Counsel appearing for the Petitioner, for the reason so
recorded above. This is also for the reason that once the Petitioner is retired,
it will be difficult for the Respondent/Department to pass final order based

upon the concluded inquiry.   There is force in the submission that in the
absence of any other contrary Rules and Regulations, the Department should
not be held responsible for their lapses on the ground based upon the
disciplinary inquiry, that they failed to pass the final order/action before the
Petitioner's retirement.  This peculiarity and being the relevant factor, apart
from the reasons so recorded, based upon the judgments so cited, we are
inclined to dismiss the present Petition.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No.12828 OF 2015
Mr.Subhash Jina Kamble ....Petitioner
Vs.
Dena Bank ...Respondent

              CORAM  :    ANOOP V. MOHTA & 
     A.A.SAYED, JJ.
     DATED   :    5 APRIL 2016
Citation:2016 (3) ALLMR 849

Print Page

Whether court should stay departmental enquiry pending criminal trial?

Having once noted the fact and circumstances so recorded above
and   also   the   fact   that   the   Petitioner   has   actually   participated   in   the
departmental inquiry and the departmental proceedings are complete, there
is   no   question   of   defence   of   the   Petitioner   of   criminal   charge   being
prejudiced.  The Department  as per the law can take own stand and pass
appropriate order as per the Regulations. Charges under the departmental
inquiry and the criminal complaint will not affect the outcome of each other.
The   criminal   proceedings,   even   if   are   pending,   need   to   proceed   in
accordance with law. The departmental inquiry and action even if completed
before the date of retirement, the Petitioner has a departmental remedy
available.   The Department, therefore, needs to consider the case of the
Petitioner in accordance with law.
In the circumstances where the Petitioner is admittedly retiring on
31 May 2016 and in view of the judgments so cited, it is necessary for the
Department to pass order and/or take action based upon the completed
inquiry   prior   to   his   retirement.     We   see   no   reason   to   stay   further   the
departmental inquiry now and the action based upon it, at this stage, as
contended by the Counsel appearing for the Petitioner, for the reason so
recorded above. This is also for the reason that once the Petitioner is retired,
it will be difficult for the Respondent/Department to pass final order based

upon the concluded inquiry.   There is force in the submission that in the
absence of any other contrary Rules and Regulations, the Department should
not be held responsible for their lapses on the ground based upon the
disciplinary inquiry, that they failed to pass the final order/action before the
Petitioner's retirement.  This peculiarity and being the relevant factor, apart
from the reasons so recorded, based upon the judgments so cited, we are
inclined to dismiss the present Petition.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No.12828 OF 2015
Mr.Subhash Jina Kamble ....Petitioner
Vs.
Dena Bank ...Respondent

              CORAM  :    ANOOP V. MOHTA & 
     A.A.SAYED, JJ.
     DATED   :    5 APRIL 2016
Citation:2016 (3) ALLMR 849

Print Page

When arbitration award will become unexecutable?

In the case of National Aluminum Co. Ltd. (supra), during the course of hearing before the Supreme Court, a request was made that since the matter had been pending more than sixteen years the respondent should be directed to deposit the amount awarded by the Arbitrator and it is in these circumstances that Supreme Court had an occasion to interpret Section 34 of Arbitration And Conciliation Act and while referring to the mandatory provision, as detailed in Section 34 of Arbitration and Conciliation Act, the Supreme Court declined to exercise its jurisdiction as no special grounds had been urged. The Apex Court also noticed the mandatory language of Section 34 of 1996 Act that an award when challenged under Section 34 within the time stipulated therein becomes unexecutable.

IN THE HIGH COURT OF DELHI

EX. P. 93/2010

Decided On: 24.10.2011

Appellants: M/S M.D. Overseas Ltd
Vs.
Respondent: Canara Bank

Hon'ble Judges/Coram:
Hon'ble Mr. Justice G.S. Sistani

Print Page

Whether District Judge can grant stay to show cause notice issued by civil judge under O 39 R 11 of CPC?

 Mr. S.R. Rivankar submitted that in the present case the
conclusion is already reached by the learned Civil Judge and
issuance of show cause notice is mere formality. Though there
may be some substance in the contention of Mr. Rivankar that
the learned Civil Judge has come to a final conclusion but,
there is no final order passed under Order XXXIX Rule 11.
6. The learned District Judge has erred in entertaining the
appeal and granting stay to the proceedings before the Civil
Judge. It is also not clear from the impugned order whether
the learned District Judge has held appeal to be maintainable
or has postponed the decision till the disposal of the appeal.
Either course of action are not correct in law. First the appeal
was not maintainable. Secondly, the learned District Judge
ought to have considered the nature of the proceedings and
what was at stake was allegation of disobedience of the order
of the Court. By grant of stay in an appeal, which is not
maintainable, the proceedings taken out in respect of breach of
judicial order have been scuttled. The appropriate course of
action would be to permit the learned Civil Judge to pass the
final order in the matter and then entertain the appeal from
such final order.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 544 OF 2014
 Shri Gajanan Bala Gawas,

 Versus
Me. Sagun Narayan Morjkar,

Coram:- N. M. JAMDAR, J.
Date:- 18 February 2015
Citation;2016(2) MHLJ 862

Print Page

Whether decree is executable when appeal is remanded?

IN THE HIGH COURT OF CALCUTTA

G.A. No. 1463 of 2001

Decided On: 08.10.2002

Appellants: Kanchan Udyag Ltd.
Vs.
Respondent: McDowell and Co. Ltd.

Hon'ble Judges/Coram:
K.J. Sen Gupta, J.

Civil - remand Order - Sections 2 and 47 of Code of Civil Procedure, 1908 - whether during pendency of appeal can decree executable - appeal pending before Apex Court and after hearing remanded back to High Court for fresh decision - respondent contention that during pendency of appeal appellant can not execute decree - admittedly no stay Order passed either by Apex Court or by High Court - appellant liable for execution of decree.

Citation: AIR2003Cal207

Print Page

Whether lower court should not proceed with matter if proceeding is pending in high court?

Normally, when this Court is ceased of the matter, it is expected of the subordinate courts to stay their hands away. It is difficult to understand as to what was an alarming urgency to proceed further and dismiss the petition when the learned Judge of the Family Court was very well aware that the order dated 15th September 2006 was challenged before this Court by the present petitioner. No doubt, that the learned Family Court is right in observing that there was no stay by this Court. But as a matter of propriety and when the learned Judge was very much aware about pendency of the petition before this Court, the learned Judge ought to have stayed his hands away and waited till further orders to be passed by this Court

Bombay High Court

Vishwanath P Mahadeshwar vs Suryawanshi Balrup Thakur & Ors.

Date :  10 February, 2011

Bench: B.R. Gavai

1 By way of the present Petition, the Petitioner challenges the order passed by the learned Additional Chief Judge, Small Causes Court, Mumbai in Election Petition No.147 of 2007 thereby rejecting the application filed by the Petitioner for amendment to the written statement.

2 It is not in dispute that during pendency of the present Petition, the Election Petition has already been allowed vide order dated 7th February 2011. However the learned counsel for the Petitioner submits that the very approach of the learned Additional Chief Judge in deciding the said Election Petition during pendency of the present Petition is illegal. The learned counsel for the Petitioner, relying on the judgment delivered by me in the case of Kishor Bhikansingh Rajput v/s. Preeti Kishor Rajput reported in 2007(3) Bom.C.R. 279, submitted that once this Court is seized of the matter, the lower courts should stay their 2 WP 9411/10

hands away from the proceedings. It is submitted that in spite of this Judgment being brought to the notice of the learned Judge, the learned Judge has proceeded to decide the said Election petition which is not

Print Page