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1999 DIGILAW 510 (RAJ)

Rajasthan State Electricity Board v. Ram Deo

1999-04-09

SHIV KUMAR SHARMA

body1999
Honble SHARMA, J.–At the time of consideration of submissions advanced in respect of admission of the appeal a short and interesting question arose in respect of interpretation of the provisions contained in sub rule (3) of Rule 1 of Order 41 CPC which provides that "where the appeal is against a 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 there of as the court may think fit". (2). Mr. R.K. Agrawal, learned counsel appearing for the appellants canvassed that the various High Courts had occasion to interpret the aforesaid sub rule (3) of Rule 1 of Order 41 along with Rule 5 of Order 41 CPC. and it was held that the afore- said rule is not mandatory in nature. (3). The basic ruling in this regard is Union Bank of India and another vs. Jagan Nath Radhey Shyam and Co. and another (1). The Code of Civil Procedure (Amendment) Bill, 1974, (Bill No. 27 of 1974) as introduced in the Parliament was considered by the Delhi High Court and it was held in paras 18,19 and 20 thus: ``18. After this report of the Joint Committee, we find that the proposed Rule 1 A was omitted from the Act as passed by Parliament and Rule (5) of Order 41 of the Code was suitably amended. 19. A bare reading of the report of the Joint Committee and thereafter the omission of Rule 1A from Order 41 as proposed in the Bill clearly shows that the intention of the Parliament was not to make the deposit of the decretal amount or the furnishing of the security before filing of appeal against money decree as a condition precedent for valid presentation of the appeal. There is thus no force in this submission as well. 20. Reading sub-rule (3) of Rule 1 of the Order 41 along with sub-rule (5) of Rule 5 of the Code, all that can be said is that so long as the decretal amount is not deposited or security is not furnished, the Court shall not make order staying the execution of the decree. (4). In J. Lakshmikantham vs. Uppala Rajamma and others (2), it was indica- ted thus- ``A bare reading of C1. (4). In J. Lakshmikantham vs. Uppala Rajamma and others (2), it was indica- ted thus- ``A bare reading of C1. 87 (original C1.90) of the Joint Committee Report concerned with the Amendment Bill of the Civil P.C. which was Bill No.27 of 1974 and thereafter the omission of R.1 A from O.41 as proposed in the Bill, clearly shows that the intention of the Parliament was not to make the deposit of the decretal amount or the fur- nishing of the security before filling of appeal against a money decree, as a condition precedent for valid representation of the appeal. As a corollary therefore it equally follows that what could not be a condition precedent for filing the appeal could not equally be allowed to be a condition precedent for final adjudication as well. (5). In State of Andhra Pradesh and another vs. Mahmud Hasan Khan Maharaj Kumar of Mahamoodabad (3), the Division Bench of Andhra Pradesh High Court in para 4 propounded thus- ``4. The contention thus raised, in our view, is without any substance. On a reading of sub-cl. (3) of R.1 and sub-cl. (5) of R. 5 of 0. 41, espe- cially having regard to the words, may allow" in sub-cl. (3) of Rule 1 the Parliament did not state before an application for stay of execution of money decree is made, money should be deposited or security must be tendered. The language of the two provisions does not indicate compliance of either of the two conditions is mandatory or that it is a condition precedent. In our view, without making the deposit or without tendering security, a "stay" application is maintainable. The Appellate Court in granting the order of stay, however will have regard to the fact whether money was deposited or sufficient security was tendered and in context of the situation, Court, may pass orders as it "thinks fit". In this view, the contentions of the respondent are rejected. (6). In Prabhakar vs. Vinayakrao (4), it was observed in para 4 thus- ``As said above the assumption of the Appellate Court that the appeal would not be tenable unless the decretal amount is paid is not correct and valid. Hence if the very foundation on which the order dated 24.9.1980 has been based is knocked out, the order itself would fall to the ground. Hence if the very foundation on which the order dated 24.9.1980 has been based is knocked out, the order itself would fall to the ground. Since it cannot be said as to whether the Appellate Court would have passed the impugned order on its own motion if it was aware of the correct legal position that the provision contained in sub-rule (3) of R. 1 of O. 41 of the Code does not impinge on the tenability of the appeal, the impugned order has to be set aside. It may, however, be made clear that it would be open for the Appellate Court to pass an order under O. 41 R. 1(3) again if it is called upon to do so and if it is thinks necessary to do........ things directed. A direc- tory provision is intended to be obeyed but failure to obey does not render a thing duly done in disobedience of it a nullity see: Drigraj Kuer vs. Amar Krishna Narain Singh (5). Merely because sub-rule (3) of rule 1 is regarded as directory, it would not be right to conclude, therefore, that it confers discretion on the Court to dispense altoge- ther with its requirement, even in a case where a justifiable ground to relieve the appellant from the obligation may appear to exist. The only discretion which is conferred on the Court under the enactment embraces limited field; the court may, in its discretion, direct that the appellant should deposit the amount, even if it be by installments, or furnish security, and, in either case, it may fix a reasonable time limit for compliance of the direction. There is no warrant to enlarge this discretion into one which enables the Court to dispense altogether with the requirement of making the deposit or furnishing the security. The plain words of the enactment do not permit such a view being taken. Indeed, to do so would defeat the legislative intent which was to ensure that the law should, to the extent possible, help in ensuring a fair deal to an unsuccessful litigant by conferring and protecting the right of appeal but, at the same time, provide a quick redress to a su- ccessful litigant so that he can realise the fruits of the decree. (8). (8). Whether the provisions of Order 41 rule 1(3) CPC can be treated mandatory or directory, the learned counsel Shri R.K. Agrawal placed reliance on Administrator, Municipal Committee Charkhi Dadri and another vs. Ramji Lal Bagla and others (6), where in it was indicated that one of the well accepted tests for deter- mining whether a provision is directory or mandatory is to see whether the enactment provides for the consequence flowing from non-compliance with the requirement prescribed. (9). I have pondered over the submissions advanced before me and carefully weighed the legal position. (10). A look at the legislative history in enacting the aforesaid sub rule demonstrates that it was never the intention of the Legislature to make compliance with sub-rule (3) as a condition precedent for preferring an appeal against a decree for payment of money. The Code of Civil Procedure (Amendment) Bill 1976 (Bill No. XXIV of 1976) proposed insertion of the said sub rule in the form in which it has been enacted. At the same time the Bill also proposed to insert sub-rule (1A) in R., of O. 41 thus- ``(1A). Where the appellant fails to make deposit or furnish security specified in sub-rule (3) of R. 1, the Court shall reject the memorandum of appeal. This Bill was referred to a Joint Committee of both the Houses of Parliament which submitted its report on 1.4.1976. Paragraph 65 of the report dealt with the clause of the Bill under which the above said two sub-rules were sought to be inserted in R. 3 of O.41. The Committee was of the view that in order to see that justice is done to both the parties, the proposed sub-rule might be amended in such a way that neither the judgment debtor is deprived of his right to pursue the appeal nor the decree holder is deprived of the remedy. Ultimately when the said Bill went through both the Houses of Parliament and emerged as the Code of Civil Procedure (Amendment) Act, 1976, the insertion of sub-rule (1A) in R. 3 was modified as recommended by the Joint Committee and enacted as sub-rule (5) of R. 5 thus- ``(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of R.1, the Court shall not make an order staying the execution of the decree. (11). (11). The fall out of this whole legislative history is that the Parliament never intended that a person who intends to prefer an appeal against the decree for payment of money has, as of necessity, to comply with the provision contained in the said sub-rule as a condition precedent for the tenability of the appeal. (12). The High Courts of Bombay, Andhra Pradesh, Delhi and Himachal Pradesh though observed that compliance of said sub rule was not mandatory yet did not completely ignore the said sub rule. (13). In Prabhakar vs. Vinayakrao (supra) as already stated, it was observed by the Bombay High Court that ``it may, however, be made clear that it would be open for the Appellate Court to pass an order under O.41 R.1(3) again if it is called upon to do so and if it is thinks necessary to do so otherwise than as a condition precedent for the tenability of the appeal. (14).Similarly in State of Andhra Pradesh and another vs. Mahmud Hasan Khan Maharaj Kumar of Mahamoodabad (supra), the Division Bench of the Andhra Pradesh High Court indicated thus- ``The Appellate Court in granting the order of stay, however will have regard to the fact whether money was deposited or sufficient security was tendered and in context of the situation, Court, may pass orders as it"thinks fit. (15). Though in the earlier part of para 4 of the said judgment it was observed that the language of the provisions of sub-rule (3) of Rule 1 and sub rule (5) of R. 5 of Order 41 CPC does not indicate compliance of either of the two conditions is mandatory or that it is a condition precedent. The stay application without making deposit or without tendering security was found maintainable. (16). The Division Bench of the Himachal Pradesh High Court in Himachal Road Transport Corporation Shimla vs. Sushila Devi and others (supra) observed that there is no warrant to enlarge the discretion into one which enables the court to dispense altogether with the requirement of making the deposit or furnishing the security. (17). Delhi High Court in Union Bank of India and another vs. Jagan Nath Rad- hey Shyam and Co. (17). Delhi High Court in Union Bank of India and another vs. Jagan Nath Rad- hey Shyam and Co. and another (supra) directed in para 20 that combined reading of sub-rule (3) of Rule 1 of the Order 41 and sub rule (5)of R. 5 of Order 41, reveals that so long as the decretal amount is not deposited or security is not furnished the Court shall not make order staying the execution of the decree. His Lordship in the said case did not observe that Sub-rule (3) of Rule 1 of Order 41 should be comple- tely ignored. (18). In J. Lakshmikantham vs. Uppala Rajamma and others (supra), it was however propounded that the intention of the Parliament was not to make the deposit of the decretal amount or the furnishing of the security before filing of appeal against money decree as a condition precedent for valid presentation of the appeal. (19). After close scrutiny of the aforesaid observations, I am of the opinion that in view of the provisions of sub-rule (5) of Rule 5 of Order 41 CPC it cannot be held that appeal against the decree for payment of money is not maintainable, if filed without making compliance of the provisions contained in Sub-rule (3) of Rule 1 of Order 41 CPC and it is the duty of the Registry to see that on application under Order 41 Rule 5 CPC seeking stay of money decree the appellant has to incorporate a note in regard to his readiness and willingness to comply with the directions under sub-rule (3) of Rule 1 of Order 41 CPC. If the appeal is preferred against the decree for payment of money without any stay application under Order 41, Rule 5 CPC then in that event, it is the duty of the appellant to incorporate a note in the memo of appeal in respect of his readiness and willingness to comply with the directions issued by the court under sub-rule (3) of Rule 1 of Order 41 CPC. (20). The legal question stands disposed of as indicated above. The appellant is directed to comply the aforesaid directions. The matter be listed for admission on 12.4.1999. (21). The Deputy Registrar (Judicial) is directed to comply with the aforesaid is directions in all such appeals preferred against the decree for payment of money at the time of presentation of the appeals.