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Mahomedalli Essabhoy Vs. Dharamsey Jaitha and Co. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 66 of 1930 and Award No. 167 of 1930
Judge
Reported in(1931)33BOMLR702
AppellantMahomedalli Essabhoy
RespondentDharamsey Jaitha and Co.
Excerpt:
civil procedure code (act v of 1908), section 151, order xli, rule 5-order refusing to set aside award--appeal from the order--stay of execution.; the high court has inherent jurisdiction to grant a stay of execution under an award, where the application to set aside the award has been refused, and there is an appeal pending from the order of refusal. in exercising the jurisdiction the court should follow the analogy of order xli, rule 5, of the civil procedure code of 1908, and see that the conditions laid down in that rule an complied with though the rule is not in strict terms applicable. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of)..........should follow the analogy of order xli, rule 5, and see that the conditions laid down in that rule are complied with. here the amount involved is substantial, viz., rs. 15,000, and if, in fact, it is not due now, i think it necessarily follows that the applicant will suffer substantial loss by having such a large sum levied against them in execution. the applicant has, under an ex parte decree which he obtained from this court, given security to the satisfaction of the prothonotary, and therefore order xli, rule 5(3)(c) has been complied with. we think, therefore, that there should be a stay until the hearing of the appeal. the security of course should remain. liberty to apply to expedite after the lists are prepared.
Judgment:

John Beaumont, Kt., C.J.

1. This is an application for stay of execution. It appears that there were arbitration proceedings in which an award was made against the applicant, and they presented a petition to the Court to upset the award and that petition was refused. There is an appeal to this Court from the order of refusal.

2. Mr. Bahadurji on behalf of the respondents takes the point that we have no jurisdiction under Order XLI, Rule 5, Civil Procedure Code, to grant a stay, because that rule only applies where there is a decree or order appealed from, and he says that the award, although it could be enforced as a decree under Section 15 of the Indian Arbitration Act, 1899, is not technically a decree. That contention is, I think, technically correct, but in my view we have inherent jurisdiction to grant a stey of execution under an award where the application to set aside the award has been refused, and there is an appeal to this Court in the matter. In exercising our inherent jurisdiction, I think we should follow the analogy of Order XLI, Rule 5, and see that the conditions laid down in that rule are complied with. Here the amount involved is substantial, viz., Rs. 15,000, and if, in fact, it is not due now, I think it necessarily follows that the applicant will suffer substantial loss by having such a large sum levied against them in execution. The applicant has, under an ex parte decree which he obtained from this Court, given security to the satisfaction of the Prothonotary, and therefore Order XLI, Rule 5(3)(c) has been complied with. We think, therefore, that there should be a stay until the hearing of the appeal. The security of course should remain. Liberty to apply to expedite after the lists are prepared.


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