MOHAMMAD RAFI SHAHUL HAMIDversusM.S POKHARNA BROTHERS THR ITS PARTNER SANJAY A. POKARNA

2026:BHC-AUG:37925
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                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                              923 WRIT PETITION NO. 9283 OF 2025

                               MOHAMMAD RAFI SHAHUL HAMID
                                             VERSUS
                 M.S POKHARNA BROTHERS THROUGH ITS PARTNER SANJAY A.
                                            POKARNA
                                                …
             Mr. P.R. Katneshwarkar, Senior Counsel i/b. Mr. G.R. Syed – Advocate for
             Petitioner
             Mr. M.S. Kabra – Advocate for sole Respondent
                                                …

                                   CORAM            : MANJUSHA DESHPANDE, J.
                                   DATE             : 19.08.2026

             ORDER:
             1.      Heard learned Senior Counsel for the petitioner and learned

             Counsel for sole the respondent.


             2.      Learned Senior Counsel Mr. P.R. Katneshwarkar for the petitioner

             submits that the petitioner is the original defendant in Special Civil Suit

             No.7 of 2021, whereas the respondent herein is the original plaintiff. The

             said suit was filed for recovery of an amount of Rs.4,74,00,000/-. The

             suit came to be decreed in favour of the plaintiff, directing the defendant

             to pay an amount of Rs.3,11,56,151/- i.e. the principal amount adjudged

             to be due to the plaintiff, within a period of three months from the date

             of the order, together with interest at the rate of 6% per annum from

             01.03.2018 till the date of the suit, and further interest at the rate of 6%

             per annum from the date of the suit till realization of the entire amount.
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3.    Learned Senior Counsel submits that the decree came to be passed

without any written statement by the defendant, an order to that effect

was passed on 12.10.2021. It is further submitted that the defendant

could not lead evidence since the Advocate engaged by him was not in

contact with him. According to the learned Senior Counsel, the parties

were residing in Kerala, whereas the suit was instituted in the State of

Maharashtra and, due to lack of communication during the relevant

period, the defendant could neither file his written statement nor could

lead evidence, resultantly the suit was decreed against him. It is

submitted that after getting knowledge of the decree, the petitioner

preferred Regular Civil Appeal No.12 of 2024, before the learned District

Judge-2, Shrigonda. The petitioner also filed an application at Exhibit 5

seeking stay to the judgment and decree passed in the suit. The said

application came to be decided by the learned District Judge-2,

Shrigonda, by order dated 21.01.2025.


4.    Learned Senior Counsel has invited the attention of this Court to

paragraph 7 of the said order, wherein the learned District Judge has

observed that “the appellant has not made out any exceptional case to

stay the operation and execution of the decree. If the Court is inclined to

stay the execution and operation of money decree the same may be

stayed by directing the appellant to make deposit of the decreetal amount

or to furnish security”. He further submits that though the learned
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District Judge noticed both the alternatives available under Order XLI of

the Code of Civil Procedure, 1908, the petitioner was directed to deposit

50% of the decretal amount within a period of three months. According

to him, the discretion vested in the Appellate Court ought to have been

exercised judicially by permitting the petitioner to furnish security instead

of directing deposit of 50% of the decretal amount. In support of his

submissions, he places reliance upon the judgment of the Hon’ble

Supreme Court in case of Sihor Nagar Palika Bureau Vs. Bhabhlubhai

Virabhai and Company reported in 2005 DGLS (SC) 390, more

particularly paragraphs 6 to 8 thereof, which read as under :

       “6.    Order XLI Rule 1(3) of the CPC provides that in an
       appeal against a decree for payment of amount the
       appellant shall, within the time permitted by the Appellate
       Court, deposit the amount disputed in the appeal or
       furnish such security in respect thereof as the Court may
       think fit. Under Order XLI Rule 5(5) a deposit or security,
       as abovesaid, is a condition precedent for an order by the
       Appellate Court staying the execution of the decree. A bare
       reading of the two provisions referred to hereinabove,
       shows a discretion having been conferred on the Appellate
       Court to direct either deposit of the amount disputed in
       the appeal or to permit such security in respect thereof
       being furnished as the Appellate Court may think fit.
       Needless to say that the discretion is to be exercised
       judicially and not arbitrarily depending on the facts and
       circumstances of a given case. Ordinarily, execution of a
       money decree is not stayed inasmuch as satisfaction of
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money decree does not amount to irreparable injury and in
the event of the appeal being allowed, the remedy of
restitution is always available to the successful party. Still
the power is there, of course, a discretionary power and is
meant to be exercised in appropriate cases.

7.    In the Memo of Appeal filed by the appellant in the
High Court, very many pleas have been raised. One of the
grounds taken is that the decree has been passed by the
Trial Court without availability of any legal evidence
amounting to proof in favour of the respondent and hence
the decree is ex-facie erroneous. The grounds urged in
favour of the prayer for stay set out for the consideration
of the High Court as an Appellate Court have been briefly
noticed hereinabove. We do not propose to deal with the
merits of the pleas so urged lest it should prejudice the
hearing of the appeal in the High Court. Suffice it to
observe that a case for grant of stay was made out even in
the opinion of the High Court and the dispute which
survived lay in a narrow compass : Whether to insist on
deposit in cash or permit a security being furnished?

8.    In the facts and circumstances of the present case
and having taken into consideration the respective
submissions made by the learned counsel for the parties in
very many details, we are satisfied to hold that the High
Court ought to have permitted furnishing of security
instead of insisting on deposit in cash of the amount as
directed by the High Court. It is not the case of the
respondent that in the event of the appeal being dismissed
the decretal amount may not be recovered from the
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       appellant. On the other hand, the appellant has made out
       a prima facie strong case for the hearing of the appeal on
       its merits and further a case that public interest would be
       better served by the amount being retained by the
       appellant during the pendency of the appeal. While
       making these observations, we should not be understood
       as having made any observation touching the merits of the
       case amounting to pre-judging any of the issues arising for
       decision in the appeal and ex abundanti cautela we clarify
       that the appeal shall be heard by the High Court on its
       own merits uninfluenced by anything said in this order.
       The appellant has already furnished security of immovable
       property to the satisfaction of the Trial Court pursuant to
       the order dated 31.2.2004 passed by this Court.”

5.    Per contra, learned Counsel for the respondent opposes the prayer.

It is submitted that the petitioner himself was responsible for not filing

the written statement and not leading evidence before the Trial Court and

that the decree came to be passed as a consequence of the petitioner's

own failure to participate effectively in the proceedings.


6.    I have considered the submissions advanced by the learned Counsel

for the respective parties and have gone through the impugned order and

the judgments relied upon by the learned Counsel.


7.    The decree passed by the learned Civil Judge, Senior Division,

Shrigonda, in Special Civil Suit No.7 of 2021 is not in dispute. It is also

not in dispute that the suit proceeded without a written statement of the
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defendant and that an order to that effect was passed on 12.10.2021.

During the aforesaid period the whole world was affected by COVID-19

pandemic. In such situation, the circumstances prevailing during the said

period, coupled with the fact that the defendant was residing outside the

State, ought to have been considered while examining the prayer for stay

of execution of the decree.


8.    The decree passed by the Trial Court is the subject matter of

challenge in Regular Civil Appeal No.12 of 2024. While considering the

application at Exhibit 5, the learned District Judge noticed that the

petitioner had not participated effectively in the trial and had not led

evidence. The discretion vested in the Appellate Court under Order XLI

Rules 1(3) and 5 of the Code of Civil Procedure was, therefore, required

to be exercised in a judicious manner upon consideration of the peculiar

facts and circumstances of the case.


9.    In the facts of the present case, having regard to the nature of the

decree, the circumstances in which the suit proceeded without a written

statement or evidence on behalf of the defendant, and the fact that the

petitioner has already challenged the decree in appeal, this Court is of the

view that the interest of the respondent/plaintiff can adequately be

protected by directing the petitioner to furnish solvent security for the

decretal amount.
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10.      The judgment relied upon by the learned Senior Counsel in Sihor

Nagar Palika Bureau (supra) supports the proposition that the Appellate

Court has discretion to permit furnishing of security instead of insisting

upon deposit of the decretal amount. The said discretion has to be

exercised judicially, having regard to the facts and circumstances of each

case. The judgment relied upon in the impugned order, namely, Malwa

Strips Pvt. Ltd. Vs. Jyoti Ltd., 2009 AIR SCW 1113, also reiterate that stay

of execution of a decree is not to be granted as a matter of course and

that appropriate conditions may be imposed for protecting the interest of

the decree-holder.


11.      In view of the above, the order passed by the learned District

Judge-2, Shrigonda, below Exhibit 5 is modified only to the extent that,

instead of depositing 50% of the decretal amount, the petitioner shall

furnish solvent security to the satisfaction of the Appellate Court for the

entire decretal amount within a period of one (1) month from today.


12.      The impugned order is modified to the aforesaid extent only.


13.      The Writ Petition stands disposed of accordingly.


14.      Pending Civil Applications, if any, also stand disposed of.




                                             [ MANJUSHA DESHPANDE, J. ]
Pooja Kale/