Case Note & Summary
The petitioner, Kisna Ganpat Sawarkar, filed a writ petition challenging an order dated 11.03.2015 passed by the lower appellate court in Regular Civil Appeal No. 162 of 2014. The trial court had decreed a suit for partition and separate possession in Regular Civil Suit No. 20 of 2010 on 09.06.2014, declaring that both the plaintiff and defendant had half share in the suit property and directing partition through the Collector under Section 54 of the Code of Civil Procedure, 1908. The petitioner, being the defendant, appealed against this decree and filed an application (Exh. 6) for stay of the decree. The lower appellate court allowed the stay but imposed a condition that the appellant deposit Rs.30,000 within four weeks and further deposit Rs.10,000 per year until the disposal of the appeal. The petitioner challenged this condition before the High Court. The High Court observed that the decree was a usual decree for partition and separate possession and did not involve any monetary claim. Therefore, the appellate court could not impose a condition of deposit of money while granting stay. The High Court set aside the condition and confirmed the stay without any condition. The writ petition was allowed accordingly.
Headnote
A) Civil Procedure - Stay of Decree - Condition of Deposit - Order 41 Rule 1 of Code of Civil Procedure, 1908 - The lower appellate court imposed a condition of deposit of Rs.30,000 and annual deposit of Rs.10,000 while staying the execution of a preliminary decree for partition and separate possession. The High Court held that since the decree was only for partition and separate possession and not for any monetary claim, the appellate court could not impose such a monetary condition. The condition was set aside and the stay was confirmed without any condition. (Paras 1-4)
Issue of Consideration
Whether the lower appellate court could impose a condition of deposit of money while granting stay of a preliminary decree for partition and separate possession, where the decree does not involve any monetary claim.
Final Decision
The High Court allowed the writ petition, set aside the condition of deposit imposed by the lower appellate court, and confirmed the stay of the decree without any condition.
Law Points
- Stay of decree
- Partition decree
- Condition of deposit
- Order 41 Rule 1 CPC
- Section 54 CPC
- Preliminary decree
- Monetary condition
Case Details
2017 LawText (BOM) (03) 153
Writ Petition No. 1781 of 2015
Shri Shantanu Ghate for Petitioner, Shri S.K. Bhoyar for Respondent
Shri Bhaurao @ Lahanu s/o Ganpat Sawarkar
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Nature of Litigation
Writ petition challenging the condition imposed by the lower appellate court while granting stay of a preliminary decree for partition and separate possession.
Remedy Sought
The petitioner sought setting aside of the condition of deposit of Rs.30,000 and annual deposit of Rs.10,000 imposed by the lower appellate court while staying the execution of the decree.
Filing Reason
The lower appellate court granted stay of the decree subject to the condition that the appellant deposit Rs.30,000 within four weeks and Rs.10,000 per year, which the petitioner contended was unwarranted as the decree was only for partition and separate possession and not for any monetary claim.
Previous Decisions
The trial court decreed the suit for partition and separate possession on 09.06.2014 in Regular Civil Suit No. 20 of 2010. The petitioner appealed and the lower appellate court passed the impugned order on 11.03.2015.
Issues
Whether the lower appellate court could impose a condition of deposit of money while granting stay of a preliminary decree for partition and separate possession, where the decree does not involve any monetary claim.
Submissions/Arguments
The petitioner argued that the decree was only for partition and separate possession and did not involve any monetary claim, hence the condition of deposit was unwarranted.
The respondent supported the order of the lower appellate court.
Ratio Decidendi
Where a decree is only for partition and separate possession and does not involve any monetary claim, the appellate court cannot impose a condition of deposit of money while granting stay of the decree under Order 41 Rule 1 of the Code of Civil Procedure, 1908.
Judgment Excerpts
It is a usual decree for partition and separate possession. There is no decree for monetary claim.
Procedural History
The trial court decreed the suit for partition and separate possession on 09.06.2014. The petitioner filed Regular Civil Appeal No. 162 of 2014 and an application for stay (Exh. 6). The lower appellate court allowed the stay on 11.03.2015 subject to conditions. The petitioner filed the present writ petition on 01.04.2015, and this Court issued notice and stayed the impugned order subject to deposit of Rs.20,000. The matter was finally heard on 29.03.2017.
Acts & Sections
- Code of Civil Procedure, 1908: Section 54, Order 41 Rule 1
