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Yeshwant Kashinath Padwal Vs. Genajee Venajee and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 35 of 1931 and Suit No. 1629 of 1929
Judge
Reported inAIR1932Bom127; (1932)34BOMLR230; 137Ind.Cas.375
AppellantYeshwant Kashinath Padwal
RespondentGenajee Venajee and Co.
Excerpt:
costs-stay of execution-costs in the appeal-practice.;the costs of an application for stay of execution pending an appeal should be costs in the appeal. - - it is desirable that the practice should be laid down one way or the other, and i think on the whole that the latter view is the better one, and that in the absence of special circumstances the general rule should be that the costs of an application for stay of execution should be costs in the appeal.john beaumont, kt., c.j.1. this is an application for stay of execution on a judgment pronounced by mr. justice kania, we have ordered stay of execution on certain terms which it is not material to state. the only question which arises now is as to the costs of this application. two rival views have apparently prevailed at different times in the past in this court. one view is that the grant of a stay of execution is an indulgence; the decree at the moment is effective and the applicant is seeking to prevent the decree-holder from taking advantage of his rights, and on that view the applicant for the stay has been ordered to pay the costs in any event. that is the view which i think prevails in england and in calcutta and was at one time adoptedby this court, the other view is that the.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an application for stay of execution on a judgment pronounced by Mr. Justice Kania, We have ordered stay of execution on certain terms which it is not material to state. The only question which arises now is as to the costs of this application. Two rival views have apparently prevailed at different times in the past in this Court. One view is that the grant of a stay of execution is an indulgence; the decree at the moment is effective and the applicant is seeking to prevent the decree-holder from taking advantage of his rights, and on that view the applicant for the stay has been ordered to pay the costs in any event. That is the view which I think prevails in England and In Calcutta and was at one time adoptedby this Court, The other view is that the decree may be reversed on appeal and if that happens, the execution of the decree was not, in the light of subsequent events, justified, and in that case the successful appellant ought not to have been ordered to pay the costs of the application for stay of execution. This latter view has prevailed more recently in this Court. It is desirable that the practice should be laid down one way or the other, and I think on the whole that the latter view is the better one, and that in the absence of special circumstances the general rule should be that the costs of an application for stay of execution should be costs in the appeal.

Rangnekar, J.

2. I agree.

Nanavati, J.

3. I agree.


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