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2006 DIGILAW 383 (AP)

TODUPUNOORY SRINIVAS v. VENISHETTY Mahesh KUMAR

2006-03-17

G.YETHIRAJULU

body2006
( 1 ) THIS civil revision petition is filed by the defendant against the order of the Senior Civil Judge, Medak, in I. A. No. 344 of 2005 in A. S. No. 6 of 2005. ( 2 ) THE respondent filed a suit for recovery of the amount and the suit was decreed. Against which, the defendant preferred an appeal covered by A. S. No. 6 of 2005. During the pendency of the appeal, he filed LA. No. 344 of 2005 under order 41, Rule 5 read with Section 151 of the Code of Civil Procedure (for short c. P. C. ) requesting the Appellate Court to grant stay of execution of the judgment and decree. The respondent opposed the application. After hearing both parties, the trial Court granted stay of execution of the judgment and decree on condition of depositing 1/4th of the amount and also the costs, within 15 days from the date of order and in the event of such deposit, the respondent is at liberty to withdraw the same and the proceedings in E. P. No. 4 of 2005 initiated for execution of the judgment and decree in O. S. No. 58 of 2002 on the file of the Junior Civil Judge, Medak are hereby stayed. If the petitioner fails to deposit the said amount, within the stipulated time, the stay granted shall stand vacated automatically without any further orders. The petitioner, being aggrieved by the order of the trial Court dated 18-11-2005, preferred this revision challenging its validity and legality. ( 3 ) THE learned Counsel for the revision petitioner, during the course of arguments, Submitted that the appellate Court erroneously applied sub-rule (3) of Rule 5 of C. P. C. The rule did not envisage directing the judgment debtor/appellant to deposit of part of decretal amount and Clause (c)envisages or enjoins furnishing security for the decrelal amount. Even this can be done after subjective satisfaction that the appellant is likely to defeat the decree or make it unexecutable or it causes irreparable damage to him. This clause is only a preventive measure and need not be a mandatory provision, therefore, requested to set aside the impugned order by directing the trial Court to call for security from the appellant. This clause is only a preventive measure and need not be a mandatory provision, therefore, requested to set aside the impugned order by directing the trial Court to call for security from the appellant. He further submitted that Order 41 rule 5 only contemplates granting of stay on condition of furnishing security and it did not contemplate depositing of money. In support of his contention he relied on a judgment of the Andhra Pradesh High court in Mohd. Abdus Samad v. Mahaboobunnisa Begum, AIR 1970 AP 210 , wherein a Division Bench of this Court considered the scope of Order 41 rule 5 (3) (c) of C. P. C. and held as follows :"the language of sub-rule (3) is emphatic and imperative, which categorically lays down that no order for stay of execution shall be made unless the Court is satisfied that security has been given by the applicant for the due performance of a decree which may ultimately be binding upon him; in other words, the decree under appeal. This provision is couched in mandatory language and unless the Court finds that security has been furnished by the applicant, no order of stay of execution can be made under sub-rule (1) by the appellate Court. " ( 4 ) BY relying on the said judgment, the learned Counsel for the revision petitioner submits that the appellate Court shall only call for security and not the deposit of cash. ( 5 ) THE learned Counsel for the respondent submits that under the Act 104 of 1977, there is an amendment to the Rule 5 in 1977 and there is amendment made by the Madras Government, which was adopted by the Government of Andhra Pradesh, wherein sub-clause (2) reads as follows : ( 6 ) IN sub-rule (1) after the words "but the appellate Court may for sufficient cause order stay of execution of such decree" add the following :"on such terms and conditions as the Court deems fit". ( 7 ) THEREFORE, the State Amendment makes it clear that the appellate Court while granting stay by imposing such terms and conditions as the Court deems fit including the deposit of part of the decretal amount. In view of the amended provision of the Act, the trial Court is justified in directing to deposit th of the amount and costs while granting stay of execution of the decree and judgment. In view of the amended provision of the Act, the trial Court is justified in directing to deposit th of the amount and costs while granting stay of execution of the decree and judgment. ( 8 ) AFTER going through the order of the trial Court, I am convinced that there is illegality in passing the order. Therefore, there are no grounds to interfere with the order of the trial Court. ( 9 ) IN the result, the civil revision petition is dismissed by confirming the order of the trial Court. No order as to costs.