Patna High Court - Orders
The State Of Bihar Through Collector, ... vs Surya Narayan Poddar on 18 April, 2017
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.106 of 2014
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1. The State of Bihar through Collector, Katihar.
2. The Collector of Katihar, District - Katihar.
3. The Executive Engineer, Flood Control Division (Karhagola) Barari,
P.O. - Guree Bazar, Katihar.
4. The Superintending Engineer, Mahananda Circle, P.O. - B.M.P. Katihar,
District - Katihar.
.... .... Appellant/s
Versus
Surya Narayan Poddar son of Dhaneshwar Poddar resident of Village -
Barinagar, P.O. - Guru Bazar, Police Station - Barari, District - Katihar at
present residing at Mohalla - Babhantoli, P.O. - Mahendru, Town and
District - Patna.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Kamlesh Kumar Sharma
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL ORDER
9 18-04-2017I.A.No.5362 of 2016 has been filed on behalf of the appellants praying therein to stay the further proceeding of Execution Case No.01 of 2013, pending in the court of the Sub Judge-I, Katihar, till disposal of this appeal.
Admittedly, the Sub Judge-I-cum-Land Acquisition Judge, Katihar, vide judgment dated 31.05.2013 and award dated 14.06.2013 directed the appellants to pay excess amount of compensation, that is near about more than Rs.30 lacs. The appellants being aggrieved by the aforesaid judgment and award have preferred this appeal.
Patna High Court FA No.106 of 2014 (9) dt.18-04-20172/4
Learned counsel appearing for the appellants submits that the learned court below has made wrong calculation of compensation and without giving any basis of his calculation of compensation, the learned court below passed the impugned judgment and award. He also submitted that the learned court below made the calculation of compensation, taking note of the provision of Bihar Bhu Arjan Punar Asthapana Awam Punarwas Niti 2007, which is not applicable in the present case.
Learned counsel appearing for the respondent submits that, admittedly, the impugned judgment and award amounts to decree for payment of money and Order XLI Rule 1(3) of the Civil Procedure Code says that if an appeal is filed against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit and, furthermore, Order XLI Rule 5(5) of the Civil Procedure Code says that notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree. He further submits that, admittedly, in the present matter, the appellants neither deposited the decretal amount nor furnished Patna High Court FA No.106 of 2014 (9) dt.18-04-2017 3/4 any security and, therefore, in view of Order XLI Rule 5(5) of the Civil Procedure Code, the execution proceeding cannot be stayed during the pendency of the present appeal.
It is an admitted position that while passing the impugned judgment and award, the learned court below directed the appellants to make payment of excess amount of compensation to the respondent and, therefore, the impugned award amounts to money decree . Since Order XLI Rule 5(5) Civil Procedure Code prohibits to grant stay if the decretal amount has not been deposited or the security has not been furnished, therefore, in my view, unless the appellants deposit the decretal amount or furnish the security, they could not succeed to get the execution proceeding stayed by this appellate court and, therefore, in the aforesaid circumstance, I.A. No.5362 of 2016 stands disposed of, giving liberty to the appellants to deposit the decretal amount in the court below within 90 days from the date of receipt/ production of copy of this order and if the appellants do so, the further proceeding of Execution Case No.01 of 2013 pending in the court of learned Sub Judge-I, Katihar, shall remain stayed till further order of this Court.
It is also made clear that if within a month from today the appellants file a petition before the court of Sub-Judge-I, Patna High Court FA No.106 of 2014 (9) dt.18-04-2017 4/4 Katihar, in Execution Case No.01 of 2013 expressing their intention to deposit the decretal amount in the court below, the concerned Execution Court shall not proceed with the Execution Case No. 01 of 2013. Further, if the appellants failed to deposit the decretal amount before the court below within the above stated period of 90 days, the Execution Court will proceed further in connection with the aforesaid Execution Case No.01 of 2013.
(Hemant Kumar Srivastava, J) N.K/-
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