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IN THE HIGH COURT OF ALLAHABAD
BINOD KUMAR ROY, N. B. ASTHANA
NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY - Appellant
Versus
MAHENDRA SINGH - Respondents
First Appeal 1125 Of 1993
Decided On : 02/15/1996
LAND ACQUISITION - STAY OF EXECUTION - ORDER 41 RULE 5 OF THE CODE OF CIVIL PROCEDURE - SUFFICIENT CAUSE - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - DEPOSIT OF DECRETAL AMOUNT - SECTION 23 AND 4 OF THE LAND ACQUISITION ACT - INTERPRETATION.
Fact of the Case:
The appellant, UPSIDC, filed an application under Order 41 Rule 5 of the Code of Civil Procedure (CPC) seeking a stay of execution of a judgment and award passed by the District Judge, Ghaziabad, in a land acquisition case. The appellant claimed that the compensation awarded was arbitrary and illegal, and that it did not have the funds to meet the liability. The respondents, who were the landowners, opposed the application, arguing that the appellant had not made out a case for a stay of execution.
Finding of the Court:
The court held that the appellant had not made out a sufficient case for a stay of execution. It found that the appellant had not shown that it would suffer irreparable injury if the stay was not granted, and that the balance of convenience was in favor of the respondents, who were entitled to the usufructs of their decree. The court also noted that the appellant had not deposited the decretal amount, as required by Order 41 Rule 5(5) of the CPC.
Issues: 1. Whether the appellant had made out a sufficient case for a stay of execution under Order 41 Rule 5 of the CPC? 2. Whether the balance of convenience was in favor of the appellant or the respondents? 3. Whether the appellant was required to deposit the decretal amount before seeking a stay of execution?
Ratio Decidendi: 1. In order to obtain a stay of execution under Order 41 Rule 5 of the CPC, the applicant must show that it will suffer substantial loss if the stay is not granted, that the application has been made without unreasonable delay, and that security has been given for the due performance of the decree or order. (Paragraph 7) 2. The balance of convenience is a factor that the court must consider when deciding whether to grant a stay of execution. In this case, the court found that the balance of convenience was in favor of the respondents, who were entitled to the usufructs of their decree. (Paragraph 13) 3. Order 41 Rule 5(5) of the CPC requires the appellant to deposit the decretal amount before seeking a stay of execution in a money decree case. The court held that the appellant was required to comply with this provision.
Final Decision: The court dismissed the appellant's application for a stay of execution.
( 2 ) FOR the purposes of development of the industrial town of NOIDA the relevant notification seeking acquisition of about three acres of lands of the Respondent Nos. 1 to 3 was made on 8-8-88 the possession of which was also taken by the State of U. P. on 4-10-1989. The S. L. A. O. awarded compensation of the acquired lands at the rate of Rs. 31. 50 per sq. yard. Respondents 1 to 3, however, claimed compensation at the rate of Rs. 250. 00 per sq. yard. Both sides adduced evidence. By the impugned judgment and award compensation was awarded at the rate of Rs. 93. 75 per sq. yard which is under challenge in this appeal.
( 3 ) THE appellant in its application has come up with an allegation that the enhancement is absolutely arbitrary and illegal and necessary ingredients which are required to be taken into consideration for determining the compensation were failed to be considered and thus the judgment is in teeth of Sections 23 and 4 of the Land Acquisition Act; that the appellant has no funds to meet with the arbitrary and huge financial liability; that in the. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . execution proceedings the accounts of the appellant have been attached resulting in serious difficulties in its day-to-day functioning as also carrying on other developmental projects undertaken by the appellant in public interest; and it would be in the interest of justice that pending disposal of this appeal execution of the judgment and decree may remain stayed so that justice be done between the parties.
( 4 ) IN the affidavit, sworn by the Assistant Law Officer of the appellant accompanying this application, it has been stated, inter alia, to the following effect :- (I) huge additional financial liability was imposed, and no funds were allocated for the said purpose (II ) The appeal was filed by paying a court fee of Rs. 5. 00 as huge amount of court fee was to be paid first, even for which no funds were available; (III) The attachment of the accounts of the appellant was erroneously made by the District Judge; (IV) There will be imminent danger in realisation of the amount in execution, and in case it is done, the appellant will suffer an irreparable injury and loss as it will not be able to realise the amount from the persons whose locations and whereabouts are not ascertainable; (V) It has no separate funds to bear the additional financial burden imposed by the impugned judgment and order of enhancement of compensation and (VI) In somewhat similar facts and circumstances this Court has been pleased to grant full order of stay of execution of the judgment enhancing the compensation in First Appeal No. 849 of 1993, UPSIDC v. Tek Ram.
( 5 ) IN support of the prayer Mr. Mishra, the learned counsel for the appellant contended as follows (i) This appeal contains very good grounds and there is every likelihood of setting aside of the impugned judgment and award and against the same judgment appeals have been preferred before this Court which have already been admitted in which similar prayers have already been allowed. Accordingly, following the doctrine of precedent we should pass similar orders staying execution of the impugned judgment and award (ii) Alternatively, interim order be passed by directing the appellants to deposit the enhanced amount in appeal within a reasonable time, to be fixed by us, as contemplated in sub-rule (5) as amended by Allahabad of Order XLI Rule 5 of the Code which should not be allowed to be withdrawn by Respondent Nos. 1 to 3 as there is every chance that after the withdrawal of the decretal amount they may not be traced at all
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