Madhur Garments v. Hasmukh Shopping Centre — 1998 DIGILAW 781 (GUJ)

S. K. KESHOTE, J. ( 1 ) HEARD learned counsel for the parties. ( 2 ) IN this Civil Application, the prayer has been made that pending hearing and final disposal of the First Appeal No. 3476/98, the execution, implementation and operation of the impugned order passed in Precept Application No. 314/95 on 29. 4. 1998 by the Judge city Civil Court No. 18, Ahmedabad be stayed. Under the order impugned in the first appeal, the Court below ordered the applicant to pay a sum of Rs. 1,87,500/- to the judgment- debtor-the respondent within a period of 8 weeks from the date of the said-order. It has further been ordered that till recovery of this amount, the judgment-creditor-applicant, herein shall not transfer or sale his immoveable property in the name of Meghdoot Garments situated at Panchratna Building, Shop no. 20 admeasuring about 731 sq. ft. The court has also directed the judgment-creditor applicant to pay a sum of Rs. 5. 000/- towards cost of inquiry. ( 3 ) FROM the reading of the order impugned in the First Appeal, it no more remains in doubt that it pertains to the directions for payment of a sum of Rs. 1,87,500/- by the judgment-creditor-applicant to the judgment- debtor respondent. It amounts to or partakes a character of money decree. Moreover, this appeal is filed under Section 96 read with Order 41 rule 1 of the C. P. C. , 1908. The provisions of C. P. C. are to be made applicable to the proceedings in the matter of grant of interim relief or staying of execution, implementation and operation of the money decree. The provisions of Order 41 Rule 1 (3) and Rule 5 of the C. P. C. , 1908 read with Order 3. 9 Rules 1 and 2 are to be taken care of and kept in mind while considering application for grant of interim relief or prayer for stay of operation of a decree. Order 41 Rule 1 (3) of C. P. C. provides that in the appeal against decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the" amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. Order 41 Rule 1 (3) of C. P. C. provides that in the appeal against decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the" amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. Rule 5 of Order 41 of CPC provides that no order for stay of execution of the decree shall be made unless the Court making it is satisfied : (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. ( 4 ) AN appeal shall not operate as a stay of proceeding under a decree or order appealed from except so far as the Appellate Court may order, nor shall executioaof a decree be stayed, by reason only of an appeal having been preferred from the decree, but the Appellate Court may for sufficient cause order stay execution of such decree. While considering the application for grant of interim relief, the Court has to consider the provisions of Order 41 rules 1 (3), 5 and Order 39 Rules 1 and 2 of c. P. C. , 1908 and only when it is satisfied that not only the party has prima facie strong case, in case the interim relief is not granted it will result in causing irreparable loss to the party applying for the same, which cannot be compensated in terms of money and lastly the balance of convenience also favours for grant of interim relief. So, the Court has to satisfy that in case the interim relief is not granted substantial injury may result to the party applying for stay. It is true that the appeal is admitted but from this admission, it will not amount to stay of operation of impugned order. At the most on the admission of the appeal it can be taken that the Court has considered it to be a case where the opposite party has to be called upon and to consider the same on merits. At the most on the admission of the appeal it can be taken that the Court has considered it to be a case where the opposite party has to be called upon and to consider the same on merits. The learned counsel for the applicant during the course of arguments urged that the applicant will furnish a bank guarantee of decretal amount. From this statement, I find that the applicant is a man of means otherwise it is difficult to furnish Bank guarantee. During the course of arguments, the learned Counsel for the applicant has failed to satisfy the Court that in case the interim relief is not granted in favour of the applicant he will suffer irreparable injury. Similarly, the learned counsel for the applicant has failed to satisfy this Court how any substantial loss may result to the applicant in case the execution of the order impugned has not been stayed. In case ultimately the applicant succeeds in appeal then whatever benefits has been drawn by the respondent are to be restituted to him. There may be some loss of the interest to the applicant but while passing the final order in case where the applicant succeeds in appeal, the Court will take care of it. So in these facts it cannot be said that by declining the grant of interim relief any irreparable loss or any substantial loss is caused to the applicant, which cannot be compensated in terms of money. Moreover, ordinarily the rule should have been to decline the interim relief of stay of execution of a money decree. After full- fledged inquiry made in pursuance to the order of this Court the learned Trial Court has passed the impugned order and merely because the applicant has chosen to file the appeal before this Court, the respondent should not be deprived of the fruits of the order. The learned Counsel for the respondent very fairly submitted that in case the applicant deposits the amount in the Court and withdrawal of the same is permitted, he will furnish the Bank guarantee for the same. In view of this statement of the learned Counsel for the respondent otherwise also I do not find any ground in this application to grant the prayer made fqr the stay of the execution, implementation and the operation of the impugned order of the trial Court. In view of this statement of the learned Counsel for the respondent otherwise also I do not find any ground in this application to grant the prayer made fqr the stay of the execution, implementation and the operation of the impugned order of the trial Court. In the result, this Civil Application fails and the same is dismissed. The applicant is directed to deposit the amount as ordered under the impugned order in the Trial Court within a period of one month from today and on the deposit of this amount, the respondent shall be entitled to withdraw the same, however as stated only on furnishing the Bank guarantee for the restitution of the same. On withdrawal of this amount on furnishing of Bank guarantee by the respondent the rest of the impugned order shall remain stayed. Application dismissed. .