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2002 DIGILAW 437 (KER)

Napoleon v. P. V. Cherian

2002-07-08

K.S.RADHAKRISHNAN, T.M.HASSAN PILLAI

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Judgment :- Radhakrishnan, J. This review petition was filed by the 4th appellant on A.S. 157/01. Appeal was dismissed at the admission stage by another Division Bench since the appellants failed to comply with an order dated 20-3-2001 as a pre-condition for admitting the appeal. Order reads as follows : “In the circumstances obtaining, we exercise our jurisdiction under Order XLI Rule 1(3) of the Code of Civil Procedure and direct the appellants to deposit the decree amount in the trial court on or before 22-5-2001. Post this appeal for admission on 28-5-2001.” Appellants could not comply with the direction given by this court. CMP. 1538 of 2001 was filed by the appellants praying that they may be allowed to furnish security to the satisfaction of the trial court for due performance of the decree that may ultimately be passed or confirmed in appeal. This court on 28-5-2001 heard that petition and only extended the time for deposit if the decree amount by three weeks from 22-5-2001. Matter was adjourned by three occasions. However, appellants did not deposit the decree amount. 2. When appeal later came up for admission again, learned counsel for the appellants submitted that a failure to comply with an order under Order XLI Rule 1(3) of the Code of Civil Procedure would not entail a dismissal of the appeal. Since the compliance with that provision was not mandatory. Submission made by learned counsel was not accepted by the Division Bench. Division Bench held as follows : “If there is to be no consequence for non-compliance with an order passed by this Court under Order XLI Rule 1(3) of the code of Civil Procedure, we fail to understand why such a provision was included in Order XLI Rule I by an amendment brought into force in the year 1976. In the light of the decision of the Full Bench of the Madras High Court in In re N. Kavambu Pillai (28) AIR 1941 Madras 836). Certainly, failure to deposit the amount as ordered by the Court in terms of Order XLI Rule 1(3) of the Code of Civil Procedure could be a default justifying the dismissal of the appeal for default. Certainly, failure to deposit the amount as ordered by the Court in terms of Order XLI Rule 1(3) of the Code of Civil Procedure could be a default justifying the dismissal of the appeal for default. It is not really a question of whether the failure to comply with a direction would automatically lead to a rejection of the appeal, but is really is a question whether the appellants are not in default to do something which is contemplated by the Code and which is ordered by the Court. When there is default on the part of a party to do something contemplated by the Code and ordered by the Court consistent with the provision in the Code, there certainly arises the Court to dismiss the appeal for default. Therefore, this appeal really requires to be dismissed for default. On the above mentioned reasoning this court passed an order on 23rd November 2001 stating that if the appellants fail to comply with the direction issued by this court on 20-3-2001 by 12-12-2001 appeal would stand dismissed for default. Since amount was not deposited as directed the appeal stood dismissed for default. 2. This review petition has been preferred by the 4th appellant. Appellants 1 to 4 are respondents 6 to 8 in the review petition. Learned counsel appearing for the review petitioner brought to our notice a decision of the apex court in Kavamuddin Shamsuddin Khan v. State Bank of India. (1998) 8 SCC 676 and a decision of the Division Bench of this court in Associated Transport Corporation (P) Ltd. v. National Insurance Co. Ltd., 1989(1) K.L.T. 386 and contended that this court has committed an error in dismissing the appeal for default for non-compliance of the requirement of Order XLI Rule 1(3). Counsel also made reference to a decision of the Andhra Pradesh High Court in State of Andhra Pradesh and another v, Mahmud Hasan Khan Maharaj Kumar of Mahamoodabad. AIR 1983 A.P. 277 and also another decision of a learned single Judge of Andhra Pradesh High Court in J. Lakshmikantham v. Uppala Raiamma and others. AIR 1982 A.P. 337. Reference was also made to the decision of the Bombay High Court in Prabhakar v. Vinayakrao AIR 1983 Bom. 301 and also a decision of the Delhi High court in Union of India and another v. Jagan Nath Radhey Shyam and Co. and another AIR 1979 Delhi 36. AIR 1982 A.P. 337. Reference was also made to the decision of the Bombay High Court in Prabhakar v. Vinayakrao AIR 1983 Bom. 301 and also a decision of the Delhi High court in Union of India and another v. Jagan Nath Radhey Shyam and Co. and another AIR 1979 Delhi 36. 3. We may point out Division Bench of this Court had occasion to consider the scope of Order XKI Rule 1(3) in Associated Transport Corporation (P) Ltd. (supra). The Bench held as follows : “After considering the rival contentions of the parties, we feel that the requirement of Order XLI Rule 1(3) is not mandatory and that the non-compliance with the above provision will not entail a dismissal of the appeal. The provision in Order XLI Rule 1(3) was added to the Code of Civil Procedure for the first time by the amending Act 104/76 and the legislature has not provided any consequential provision as to what should happen in case the appellant does not either deposit the amount or furnish security and the necessary inference from that is that the legislature did not intend and dismissal of the appeal for non-compliance with the above provision. In this connection it will be relevant to refer to the Joint Committee Report which was concerned with the Amendment Bill of the C.P.C. which was Bill No. 27 of 1974 and adverting to clause 87 which read :- “The committee note that under the proposed new sub-rule (1A) of Rule 3 in Order XLI, if the appellant fails wither to deposit the amount disputed in the appeal or to furnish security for such amount, the memorandum of appeal shall be rejected. The Committee feel that such a provision will deprive a judgment-debtor having a good case, to pursue the appeal on account of his inability to deposit the disputed amount or to furnish security for such amount. The Committee is, therefore, of the opinion 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. Proposed sub-rule (1A) has been amended to provide that stay of execution of the deposit is made or security is furnished and has been transported as sub-rule (3) of Rule 5”. Proposed sub-rule (1A) has been amended to provide that stay of execution of the deposit is made or security is furnished and has been transported as sub-rule (3) of Rule 5”. A reading of the Report of the Joint Committee and the omission of Rule (1A) from Order XLI as proposed in the Bill clearly indicate that the parliament never intended the deposit of the decretal amount or the furnishing of the security before filing of appeal against a money decree as a condition precedent for valid presentation of the appeal or entertainment of the appeal. It therefore follows that the provision in Order XLI Rule 1(3) is not a condition precedent for filing of the appeal or a condition precedent for final adjudication of the appeal.” Further the Division also held as follows : “The matter can be looked at from another angle also. Order XLI Rule 5(5) provides as follows :- “(5) Not withstanding 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 rule 1, the court shall not make an order staying the execution of the decree.” From this it can be seen that the deposit or furnishing of security contemplated under sub-rule(3) of Rule 1 is mandatory only for the purpose of granting a stay of execution of a money decree. If the provision contained in the above sub-rule was a mandatory requirement for the filing or entertainment of an appeal, the provision in Order XLI Rule 5(5) was unnecessary. It therefore follows that the provision contained in Order XLI Rule 1(3) is not mandatory nor is it a condition precedent for filing of an appeal or a condition precedent for filing of an appeal or for final adjudication of an appeal against a money decree. We therefore overrule the preliminary objection raised by the respondents regarding the maintainability of the appeal.” The same question came up for consideration before the apex court in (1998)8 SCC 676 (supra). We therefore overrule the preliminary objection raised by the respondents regarding the maintainability of the appeal.” The same question came up for consideration before the apex court in (1998)8 SCC 676 (supra). The court examined the scope of Order XLI, Rule 1(3) read with Rule 5(5) of the C.P.C. and held as follows : “We, however, find that the only consequence for non-compliance with the direction given under sub-rule (3) of Rule 1 of Order XLI which reads as under : “(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 Rule 1, the Court shall not make an order staying the execution of the decree.” This would mean that non-compliance with the direction given regarding deposit under sub-rule (3) of Rule 1 of Order XLI would result in the Court refusing to stay the execution of the decree. In other words, the application for stay of the execution of the decree could be dismissed for such non-compliance but the court could not give a direction for the dismissal of the appeal itself for such non-compliance.” In view of the above mentioned authoritative pronouncement of the apex court as well as the principles laid down by the Division Bench of this court we are of the view the reasoning adopted by the Division Bench in dismissing the appeal before admission cannot be sustained. Consequently we review the order passed by this Court on 23rd November 2001. Post the appeal for admission before appropriate court.