Dismissed

Shrinath v. Chaturvedi and Anr. v Dr. Haniraj L. Chulani and Anr.

Bombay HC18 Apr 2006WP/337/2006

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order by the lower appellate court requiring an unsuccessful tenant to deposit monthly compensation of Rs. 20,000/- pending appeal. The Court upheld the order as valid under Order 41 CPC.

What did the court decide?

Writ petition dismissed; time for deposit extended by six weeks; respondent allowed to withdraw deposited amount; lower appellate court directed to expedite appeal hearing within six months.

Shrinath v. Chaturvedi and Anr. Vs Dr. Haniraj L… — Execution and Attachment | Bombay HC (2006)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO. 337 OF 2006

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 Shri Shrinath V. Chaturvedi & anr. ... Petitioners

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V/s

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 Dr. Haniraj L. Chulani & anr. ... Respondents

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 Mr. R.A. Thorat with M.K. Upadhyay for the petitioners.
 Mr. A.K. Abhyankar with Pradeep Sancheti for the
 respondents.

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CORAM: P.V. KAKADE, J.
DATED: 18TH APRIL, 2006
P.C.:

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 1. Heard learned counsel for boths parties. Perused
 the record.

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 2. The petitioner is the unsuccessful tenant who is
 under decree for his eviction and has preferred appeal
 in which cours he made an application for stay of the
 Trial Court’s order of eviction from the suit premises.

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 3. The lower appellate Court Judge in Appeal No. 74 of
 2005 while passing the order under Application Exh.7
 passed an order to the effect that the petitioner
 appellant should deposit the compensation or damages at

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 the rate of Rs.20,000/- with effect from the date of the
 decree till the disposal of the appeal with direction to
 deposit the arrears within a specified time and further
 directed that the appellant should deposit the
 compensation at the said rate regularly on monthly basis
 and further sought undertaking from the respondent that
 in case if it was found that the amount was paid in
 excess, he shall refund the excess amount. On this
 condition, the decree of the Trial Court came to be
 stayed with direction that if the order was not
 complied, the stay shall be vacated. The present
 petition is filed against the said order passed on 30th
 November, 2005.

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 4. The only objection raised on behalf of the

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 petitioner is to the effect that this order was passed
 by the lower appellate Court on an independent
 application made by the respondent to fix the amount of
 compensation and, therefore, it cannot be said to be a
 order passed under Order 41 Rule 5 sub-rule (2) of the
 Code of Civil Procedure, but could be said to be the
 order passed under Order 15-A of the Code of Civil
 Procedure. However, if we peruse the provision of
 sub-rule (2) of Rule 5 of Order 41 of the C.P.C., it is
 quite clear that the provision lays down that no order

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 for stay for execution shall be made under sub-rule (1)
 or sub-rule (2) unless the Court making it is satisfied
 - (a) that substantial loss may result to the party
 applying for stay of execution unless the order is made;
 (b) that the application has been made without
 unreasonable delay; and (3) that security has been
 given by the applicant for the due performance of such
 decree or order as may ultimately be binding upon him.

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 In this context, it appears that the lower Court has
 relied upon the recent ruling of the Apex Court in the

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 case of Atmaram Properties Pvt. Ltd. v/s Federal

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Motors Pvt. Ltd., reported in (2005) 1 SCC 705 in order
 to come to the conclusion that the respondent is
 entitled to fix the amount of compensation or damages to
 be paid by the appellant. I am of the considered view
 that the dispute involved in this petition is fairly
 covered by the said ruling of the Apex Court which is
 properly applied by the lower appellate Court. It was
 submitted on behalf of the petitioner that there was no
 basis for the lower appellate Court to fix the monthly
 quantum of compensation at the rate of Rs.20,000/-.
 However, it is to be noted that there was valuation
 report on record which valued the monthly rent of
 compensation or damages to the extent of Rs. One lac

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 per month as against the demand made by the respondent
 at the rate of Rs.50,000/- p.m. However, the lower
 appellate Court, after taking into account the relevant
 aspects revealed by the valuation report in respect of
 the situation, locality, development and all other
 relevant aspects to hold that the proper rate of
 compensation would be Rs.20,000/- p.m. which was
 directed to be deposited as per the impugned order.

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 5. In view of this position, I do not see any fault in
 the reasoning adopted by the lower appellate Court while
 passing the said order.

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 In the result, the petition is devoid of any merits and
 stands dismissed with no order as to costs.

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 6. On request of the petitioner, the time given to
 deposit the balance amount of compensation is extended
 by six weeks. The respondent is allowed to withdraw the
 amount which is already deposited in the High Court.

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 7. At this stage, the learned counsel for the
 respondent brought to my notice that the Supreme Court
 has issued directions to expedite the hearing of the
 suit. In view of this position, the lower appellate

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 Court is directed to expedite the hearing of the appeal
 so as to adjudicate it on merits within six months from
 the date of this order.

Shrinath v. Chaturvedi and Anr. v Dr. Haniraj L. Chulani and Anr.

Case brief

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What did the court decide?

Shrinath v. Chaturvedi and Anr. v Dr. Haniraj L. Chulani and Anr.

Case brief

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