Maria Adelaide Pereira and Anr. Vs Peter Savio Lourenco Represented by His Attorney Jainita Madkaikar E Lourenco and Anr. — Bombay HC (2025) — LawSathi Research

Maria Adelaide Pereira and Anr. Vs Peter Savio Lourenco Represented by His Attorney Jainita Madkaikar E Lourenco and Anr. — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Conditional stay of execution and implementation of the Judgment and Decree dated 07.11.2023 so far as the alleged encroached portion in the appellants' possession, subject to (i) an undertaking within one week of no further encroachment and confinement of possession to the portion covered by the decree, and (ii) monthly deposits of Rs.5,000/- in Court from 07.11.2023, with arrears within four weeks.

Issue for consideration

Whether the execution and implementation of the Judgment and Decree dated 07.11.2023 passed by the Appellate Court should be stayed pending disposal of the admitted appeals. +2 more

Court's answer

The Judgment and Decree dated 07.11.2023 passed by the Appellate Court is stayed so far as the alleged encroached portion in respect of which the appellants are in possession, both appeals having been admitted.

Ratio / Principle

The stay is conditional on the appellants filing within one week an undertaking that there shall be no further encroachment and that they will restrict their possession to the portion covered by the decree; the statement made on instructions was accepted.

Key takeaways

As a condition of continuing in possession, the appellants shall deposit Rs.5,000/- per month in this Court commencing from 07.11.2023; subject to such undertaking and deposit being made, the impugned Judgment and Decree is stayed to the extent the appellants are in possession.ratio¶¶28
The appellants shall deposit the monthly amount regularly, and the arrears shall be deposited within a period of four weeks.ratio¶¶29

Detailed headnote1 paragraphs

High Court of Bombay at Goa (M. S. Karnik, J.), 07/02/2025 — Civil Application No.49/2024 in Second Appeal No.28/2024, with Second Appeal No.1778/2024 (F): Execution and implementation of the First Appellate Court's Judgment and Decree dated 07.11.2023 — directing the appellants to hand over the portion found to be encroached — stayed so far as the appellants remain in possession, both the plaintiff's and the defendant's appeals having been admitted. Stay conditional on (i) an undertaking within one week that there will be no further encroachment and possession will be confined to the portion covered by the decree, and (ii) monthly deposits of Rs.5,000/- in Court from 07.11.2023 towards compensation for continued possession, arrears within four weeks; counsel for the respondent/original plaintiff had invoked Atmaram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705. Civil Application disposed of in these terms.

15-CA-49-2024,SA-1778-24 (F).DOC

Suchitra9

IN THE HIGH COURT OF BOMBAY AT GOA

CIVIL APPLICATION NO.49/2024 IN SECOND APPEAL NO.28/2024

MARIA ADELAIDE PEREIRA& ANR.

… APPLICANTS

Versus

PETER SAVIO LOURENCO REPRESENTED BY HIS ATTORNEY JAINITA MADKAIKAR E LOURENCO & ANR. … RESPONDENTS

Mr S. Redkar with Mr K. Desai, Advocates for the Applicants. Mr J. J. Mulgaonkar, Advocate for Respondent No.2.

WITH

SECOND APPEAL NO.1778/2024 (F)

PETER SAVIO LOURENCA REPRESENTED BY HIS ATTORNEY JANITA MADKAIKAR E LAURENCO & ANR. … APPELLANTS Versus

MARIA ADELAIDE

PEREIRA AND ANR. … RESPONDENTS

Mr J. J. Mulgaonkar, Advocate for the Appellants. Mr S. Redkar with Mr K. Desai, Advocates for the Respondents.

CORAM: M. S. KARNIK, J.

DATED: 7^th FEBRUARY 2025

P.C. :

1. Heard Mr S. Redkar, learned counsel for the applicants in Civil Application No.49/2024. his is an application for stay of

Page 1 of 3 7^th February 2025

15-CA-49-2024,SA-1778-24 (F).DOC

Judgment and Decree dated 07.11.2023 passed by the Appellate Court. he appeal by the plaintif as well as the appeal by the defendant is admitted.

2. he original defendant has iled this application seeking stay of the execution and implementation of the decree. By the said decree the First Appellate Court has directed the appellants to hand over a portion of the land to the plaintif which according to the indings of the Appellate Court is the encroached portion. Since the appeal has been admitted and as the appellants are in possession, I am inclined to stay the Judgment and Decree so far as the alleged encroached portion in respect of which the appellants are in possession. Learned counsel for the appellants on instructions submitted that an undertaking will be iled within a period of one week from today stating that there shall be no further encroachment and they will restrict their possession to the portion in respect of which the decree is made. he statement is accepted.

3. Further, the learned counsel for the respondent/original plaintif submits that as now there is a decree in favour of the plaintif, if the appellants want to continue in possession they must pay suitable compensation in view of the decision of the Supreme Court in Atmaram Properties (P) Ltd. v/s. Federal Motors (P) Ltd. - (2005) 1 SCC 705 .

4. Taking an overall view of the matter, in my opinion, the interest of justice will be served if the appellants are called upon and in fact the learned counsel for the appellants on instructions

Page 2 of 3 7^th February 2025

15-CA-49-2024,SA-1778-24 (F).DOC

submitted that the appellants are willing to deposit a sum of Rs.5,000/- per month in this Court commencing from 07.11.2023. Subject to such undertaking iled and deposit being made, the impugned Judgment and Decree to the extent the appellants are in possession is stayed.

5. he appellants to deposit the amount regularly. he arrears to be deposited within a period of four weeks from today.

6. Civil Application No.49/2024 is disposed of in the above terms.

M. S. KARNIK, J.

Page 3 of 3 7^th February 2025

Signed by: SUCHITRA NANDAN SINGBAL Designation: Personal Assistant Date: 07/02/2025 15:05:51