Bombay High Court
Eknath Shankar Paradhi,Deced. His ... vs Shri Bhikaji Laxman Bhuwad on 21 February, 2023
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
907.sa.451.09.1..doc
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.451 OF 2009
Eknath Shankar Paradhi
(Deceased Thr.) his L.R's
Smt. Suman Eknath Paradhi & Ors. ...Appellants
Versus
Shri. Bhikaji Laxman Bhuwad ...Respondent
Mr. Madhav Kulkarni, for the Appellants.
Mr. Vijay Gharat, for the Respondent.
CORAM : MADHAV J. JAMDAR, J.
DATED : 21st FEBRUARY, 2023 P.C. :
1. Heard Mr. Kulkarni, learned counsel appearing for the Appellants and Mr. Gharat, learned counsel appearing for the Respondent.
2. This Court by order dated 20th January, 2010 admitted the Second Appeal and also granted stay to the execution of the Judgment and Decree, on the condition that, the Appellants shall deposit Rs. 6000/- per year with effect from December-2009 till the disposal of the Second Appeal. Mr. Kulkarni, learned counsel appearing for the Appellants states that, the said amount is being deposited regularly. He states that, although, this court has stayed the impugned 1 ::: Uploaded on - 24/02/2023 ::: Downloaded on - 25/02/2023 04:07:15 :::
907.sa.451.09.1..doc decree of possession, still the learned Executing Court is proceeding further with the execution proceeding in view of the Judgment of Supreme Court in the case of Asian Resurfacing of Road Agency Private Limited & Anr. Vs. Central Bureau of investigation.1
3. He pointed out paragraph No. 36 of the said Judgment.
The said paragraph No.36 reads as under :
"36. In view of the 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 toady 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 1(2018) 16 SCC 299 2 ::: Uploaded on - 24/02/2023 ::: Downloaded on - 25/02/2023 04:07:15 :::
907.sa.451.09.1..doc 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 fnaliied. The trial court where order of stay of civil or criminal proceedings is produced, may fx 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."
(Emphasis added)
4. A bare perusal of said paragraph No.36 shows that the same is regarding proceeding remaining pending due to stay in civil and criminal cases. It is clear that, the proceeding which are contemplated by Asian Resurfacing of Road Agency Private Limited & Anr. (supra) are the trial proceedings and the execution proceedings are not contemplated by the said decision. In any case, the said decision in the Asian Resurfacing of Road Agency Private Limited & Anr. (supra) is clarifed by further order dated 25th April 20222. In the said order, the Supreme Court has clarifed that the direction issued in Asian Resurfacing of Road Agency Private Limited & Anr. (supra), arose out of the factual and legal matrix present therein. The case 2 2022 SCC Online SC 1014 3 ::: Uploaded on - 24/02/2023 ::: Downloaded on - 25/02/2023 04:07:15 :::
907.sa.451.09.1..doc revolved around the questions arising out of the pendency of civil and criminal cases, i.e., of trial being halted and the tendency towards procrastination on the strength of the orders of stay granted. The result was that the cases were not being taken to their logical conclusion with the speed with which they should have been done.
5. Therefore, it is clear that, by no stretch of imagination the said decision in Asian Resurfacing of Road Agency Private Limited & Anr. (supra) will apply to the execution proceedings. As this court has stayed the possession decree, execution of the said decree cannot be continued. Therefore, it is clarifed that, in terms of order dated 20th January, 2010 passed in this Second Appeal, the impugned decree of possession shall remain stayed on the conditions stipulated in said order dated 20 th January, 2010. It is further clarifed that, the execution of said decree of possession which has been stayed shall also remain stayed till pendency of this Second Appeal.
[ MADHAV J. JAMDAR, J.] 4 ::: Uploaded on - 24/02/2023 ::: Downloaded on - 25/02/2023 04:07:15 :::