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2008 DIGILAW 177 (CAL)

Zoological Survey of India v. Piscean Enterprises

2008-02-08

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment :- (1.) WHILE hearing an application for stay of a money decree suffered by the appellants, a question of law has arisen as regards the applicability of Order XXVII to the provision of order XLI Rule 1 of Subrule 3 of the Code of Civil Procedure. (2.) IN the case before us, the Union of India is one of the appellants who has suffered a money decree and according to Mr. Tarafder, the learned advocate appearing on behalf of the appellants, there should not be any imposition of condition of depositing the decretal amount or giving security thereof for stay of execution case till the disposal of the appeal in view of the provision contained in Order XXVII Rule 8a of the Code of Civil Procedure. (3.) MR. Tandon, the learned Advocate appearing on behalf of the respondent has, however, opposed the aforesaid contention and has submitted that in a given situation, the Court can even refuse to stay the execution and at the same time, direct the appellant to deposit or give security of the decretal amount even if the appellant is a Government. (4.) THEREFORE, the first question that arises for determination in this application is whether the appellants, as a matter of right, can claim stay of operation of the impugned money decree without either depositing the decretal amount or furnishing any security thereof. (5.) TO appreciate the aforesaid question, it would be profitable to refer to the provisions contained in Order XLI Rule 1 (3), order XLI Rule 5 and Order 27 Rule 8a of the Code of Civil Procedure which are quoted below : order XLI Rule 1 (3) " 1. Form of appeal What to accompany memorandum. (D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) 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 thereof as the Court may think fit. " Order XLI Rule 5 "5. Stay by Appellate Court. (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of 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 of execution of such decree. Explanation. An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance. (2) Stay by Court which passed the decree. Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the court which passed the decree may on sufficient cause being shown order the execution to be stayed. (2) Stay by Court which passed the decree. Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) No order for stay of execution shall be made under sub-rule (1)or sub-rule (2) 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) [subject to the provisions of Sub-rule (3)], the court may make an ex pane order for stay of execution pending the hearing of the application. (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 rule 1, the Court shall not make an order staying the execution of the decree." Order 27 Rule 8a "8-A. No security to be required from Government or a public officer in certain cases. No such security as is mentioned in Rules 5 and 6 of Order XLI shall be required from the government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity." (6.) AFTER hearing the learned Counsel for the parties and after going through the provisions contained in order XLI Rule 5 of the Code of Civil procedure, we find that filing of an appeal by itself does not amount to stay of the decree impugned in the appeal and a discretion is vested in the appellate Court to order stay of operation of decree only on sufficient cause being shown by the appellant. Sub-rule 3 of Rule 5 of Order XLI purposely states that no order of stay of execution should be made under Sub-rule 1 or Sub-rule 2 unless the Court making it is satisfied that substantial loss may result to the party applying for the stay of execution if such order is not made, and that the application has been made without unreasonable delay and in addition to those conditions, security has been given by the applicant for due performance of the decree or order as may be ultimately binding upon him. (7.) IT is true that in view of the provisions contained in Order XXVII rule 8a of the Code, the Government is exempted from depositing the amount or furnishing security in terms of Rule 5 or Rule 6 of Order XLI but that does not mean that an Appellate Court will automatically grant stay of execution if the Government is the appellant. Before granting stay, the appellate Court must be satisfied that the conditions mentioned in Clauses (a) and (b) of the Sub-rule 3 of Order XLI Rule 5 are fulfilled. If it appears to an Appellate Court that no substantial loss would result to the appellants if stay is not granted or that the application had not been made without unreasonable delay, the Court may even reject the application for stay notwithstanding the fact that the appellant is none but the Government. (8.) THE provisions contained in Rules 5 and 6 of Order XLI are applicable to all types of appeal. So far the appeal preferred against the money decrees are concerned, the appellants are further required to comply with the requirement of Sub-rule 3 of Rule 1 of order XLI by either depositing the money decreed or furnishing security of the decretal amount. It will be pertinent to mention here that by virtue of order XXVII Rule 8a of the Code of Civil Procedure, although exemption has been given to the Government in the matter of furnishing security or depositing money for the purpose of order XLI Rules 5 and 6, yet, the necessity of complying with the provision of Sub-rule 3 of Rule 1 of Order XLI has not been dispensed with, even if, the appellant is a Government. (9.) ACCORDING to Sub-rule 5 of Rule 5 of Order XLI, so long the appellant fails to make deposit or furnish security as mentioned in Sub-rule 3 of Rule 1 of Order XLI of the Code, that the Court should not make an order staying execution of a decree. (10.) THEREFORE, the combined effect of Order XLI rules 5 and 6 and of Order XXVII of Rule 8a of the Code of Civil procedure is that in a case where the appellant is a Government and the appellant complies with the requirement of Clauses (a) and (b) of Sub-rule 3 of rule 5 of Order XLI of the Code, the Court may grant stay of execution of the decree without passing a direction upon the appellants of complying with the formalities of furnishing security as provided in Clause (c) in case of any classes of appeal other than a money appeal but if the requirement of clauses (a) and (b) are not complied, the Court can reject the application for stay. (11.) THE next question is whether in case of an appeal against the money decree, the Government as an appellant can claim exemption from the necessity of complying with the provisions contained in Sub-rule 3 of order XLI Rule 1 of the Code of Civil Procedure. (12.) OUR attention has been drawn to a Division Bench decision of this Court in the case of Union of India v. Burma construction reported in air 2004 Cal 174 where the Division Bench by relying upon three decisions of the Allahabad High Court, all passed after 1996, came to the conclusion that Rule 1 (3) of Order XLI is subject to Rules 5 and 6 of Order XLI which is again governed by Rule 8a of Order XXVII of the Code of Civil Procedure when appellant is Government and thus, the government is not required to comply with the requirement of Sub-rule 3 of order XLI Rule 1 of the Code. It is further pointed out in the said decision that as there is no consequential effect of noncompliance of the provisions of order XLI Rule 1 Sub-rule 3 is provided in the Code, the same is subject to the provisions of Rule 8a of Order XXVII. (13.) WITH great respect to the learned Judges, we are unable to subscribe to the aforesaid view taken by their Lordships. (13.) WITH great respect to the learned Judges, we are unable to subscribe to the aforesaid view taken by their Lordships. (14.) A conjoint reading of Order XLI Rule 1 sub-rule 3 and Order XLI rule 5 of the Code will make it abundantly clear that while preferring a money appeal, the appellant is not required to deposit the money or give security thereof along with the memorandum of appeal at the time of filing of appeal. In other words, deposit of money or giving of security is not a condition precedent for entertaining such appeal and Court can grant time to the appellants to deposit that amount or give security thereof at a subsequent stage of the appeal. (15.) FOR the above reason, we, however, are unable to accept the contention of the learned Advocate for the appellant that Sub-rule 3 of Order xli Rule 1 is not at all required to be complied with if the appellant is the government. The appeal can be entertained by the department without the deposit of money or without furnishing security and even the stay application can also be entertained at that stage, but in case of such application filed by an applicant which is not a Government, no order of stay shall be granted so long the money is not deposited or security is not given. In case the Government is the appellant, the Court can grant stay if the conditions mentioned in Clauses (a) and (b) of Order XLI Rule 5 (3)of the Code are complied with, but such stay will not continue until the disposal of the appeal. The Court is bound to pass an order directing the government appellant to deposit the money or give security in terms of sub-rule 3 of Order XLI Rule 1 of the Code within a time fixed by it and the appeal cannot be heard out so long the money is not deposited or security is not given. The Court can give a reasonable time to the Government to deposit the amount or to give security but if the money is not deposited or security is not given within the time so fixed, the Court is bound to dismiss the appeal for non-compliance of Sub-rule 3 of Order XLI Rule 1. The Court can give a reasonable time to the Government to deposit the amount or to give security but if the money is not deposited or security is not given within the time so fixed, the Court is bound to dismiss the appeal for non-compliance of Sub-rule 3 of Order XLI Rule 1. We are unable to accept the view of the division Bench (supra) that even such an appeal at the instance of the government can be disposed of on merit though government has neither deposited the decretal money nor given security thereof. (16.) WE find that the Division Bench in the said decision relied upon three decisions of Allahabad High Court all reported after 1996. We notice that by virtue of the local amendment of the Allahabad high Court, the Subrule 3 of Rule 1 of order XLI was deleted with effect from 1st January, 1994. Therefore, in the State of Uttar Pradesh, the appellant is not required to comply with the requirement of Sub-rule ,3 of rule 1 and consequently, those decisions of the Allahabad High Court passed after 1994, cannot guide us when we are bound by the provisions contained in Order XLI Rule 1 Sub-rule 3 whereas the Allahabad High Court is not. Even the observation, in the case of U. P. Vikas and Avas Parishad v. Satya Prakash reported in 1997 All India High Court Cases page 3266, relied upon by the Division bench, that the appellant therein was part of State and as such, it would get the benefit of Order XXVII Rule 8a of the Code, as arrived at paragraph 16 of the judgement, is in our opinion not tenable in the eye of law. The learned Judge totally overlooked that the benefit of Order XXVII is given not to any statutory corporation but only to the government within meaning of Order xxvii Rule 8b or where the Government has undertaken the defence of the suit, to any Public Officer sued in respect of an act alleged to be done by him in his official capacity. (17.) MR. Tarafder further tried to convince us that as in sub-rule 5 of order XLI Rule 5, there is reference of Rule 1 (3) of the Code, Order XXVII rule 8a will automatically apply also to order XLI Rule 1 (3) of the Code. (17.) MR. Tarafder further tried to convince us that as in sub-rule 5 of order XLI Rule 5, there is reference of Rule 1 (3) of the Code, Order XXVII rule 8a will automatically apply also to order XLI Rule 1 (3) of the Code. We are afraid we are not at all impressed by such submission. Sub-rule 5 of Order XLI Rule 5 merely provides that notwithstanding anything contained in the "foregoing sub-rules" (meaning thereby, the various sub-rules of Rule 5, and not the sub-rules of rule 1) the Court shall not make any order staying the execution of the decree unless the provisions contained in Rule 1 (3) of order XLI has been complied with. Therefore, it is not the mandate of that sub-rule 5 that notwithstanding the provisions of Sub-rule 3 of Rule 1 of order XLI of the Code, the appellant is not required to comply with the same. (18.) MR. Tarafder, in this connection placed strong reliance upon a division Bench decision of the Himachal Pradesh high Court in the case of Himachal Road Transport Corporation v. Sushila Devi and Ors. reported in air 1978 HP 78 in support of his contention that the provisions contained in Rule 1 (3) of Order XLI is not mandatory and for non-compliance of the order for deposit of the amount no appeal can be dismissed as no consequence has been indicated in the said provision. According to the division Bench, for violation of any direction for deposit of money in terms of that provision, at the most, the appellant can be held guilty of contempt but there is no scope of dismissing the appeal or rejecting the memorandum of appeal for such non-compliance. In arriving at such conclusion, the division Bench took note of the legislative history behind such provision and held that the recommendation of the joint committee and the consequential omission of the proposed sub-rule 1a clearly showed the intention of the Parliament not to make the deposit of the decretal amount or furnishing security before filing of appeal as condition precedent for valid presentation of the appeal. (19.) THE Division Bench noted the history of the said legislation in the following terms-"bill No. 27 of 1974, being a Bill further to amend the Code of Civil procedure, 1908, and the Limitation Act, 1963, was introduced in the Lok Sabha on April 8, 1974. (19.) THE Division Bench noted the history of the said legislation in the following terms-"bill No. 27 of 1974, being a Bill further to amend the Code of Civil procedure, 1908, and the Limitation Act, 1963, was introduced in the Lok Sabha on April 8, 1974. The text of the Bill is found published in the Gazette of India (Extraordinary) dated April 8, 1974, in Part-ll, section 2 at pages 203 to 293. The statement of objects and reasons accompanying the Bill recites in para 5 at page 295 that after carefully considering the recommendations made by the Law Commission in its twenty-seventh, Fortieth, Fifty-fourth and Fifty-fifth Reports, the Government had decided to bring forward the said Bill for the amendment of the Code of Civil procedure, 1908, keeping in view, among others, the following basic considerations, namely : (i) that a litigant should get a fair trial in accordance with the accepted principles of natural justice; (ii) that every effort should be made to expedite the disposal of civil suits and proceedings, so that justice may not be delayed; (Hi) that the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community who do not have the means to engage a pleader to defend their cases. Clause 90 of the Bill provided for the amendment of Order 41. In Rule 1 of Order 41, after sub-rule (2), sub-rule (3) in the following terms was sought to be introduced :" (3) Where the appeal is against an order made in execution of 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 thereof as the court may think fit. " (Underlining supplied)In addition, the following provision was sought to be introduced by way of amendment as sub-rule (1a), after sub-rule (1), in Rule 3 of Order 41: " (1a) Where the appellant fails to make the deposit or furnish security specified in sub-rule (3) of rule 1, the Court shall reject the memorandum of appeal. " Sub-rule (5) of Rule 5 of Order 41, as now enacted, did not find place in the Bill, in the same or any other form. " Sub-rule (5) of Rule 5 of Order 41, as now enacted, did not find place in the Bill, in the same or any other form. The Notes on clauses annexed to the Bill point out at page 336 that rule 1 of Order 41 was being amended by introduction of sub-rule (3) to provide for the deposit or the furnishing of security for decretal amount by judgment-debtor when the appeal is against an order made in execution of a money decree. As regards amendment of rule 3 of Order 41 by insertion of sub-rule (1a), it was mentioned that the provision was meant to provide that where the appellant fails to make the deposit of the decretal amount or to furnish security specified in sub-rule (3)of rule 1, the memorandum of appeal shall be rejected. After the Bill was introduced in Lok Sabha on april 8, 1974, the motion for reference of the Bill to a Joint Committee of the houses was moved in lok Sabha on May 2, 1974 and it was adopted. The Rajya Sabha concurred in the said motion on May 14, 1974. The Joint Committee constituted accordingly submitted its Report to Lok Sabha on April 1, 1976. The Report is found published at pages 804/3 to 804/34 in the Gazette of India (Extraordinary) Part-ll, Section-2, dated April 1, 1976. At page 804/21, the joint Committee offered its observations in paragraph 65 of the Report with regard to Clause 87 (Original clause 90) of the Bill. The relevant portion from paragraph 65 of the Report of the joint Committee is extracted hereinbelow: "65. Clause 87 (Original clause 90).- (i) The Committee note that under the proposed new sub-rule (1a)of rule 3 in Order XLI, if the appellant fails either 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 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 are, 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 decree will not be granted unless the deposit is made or security is furnished and has been transposed as sub-rule (5) of rule 5. XXX XXX XXX XXX. " be it stated that the Committee made no specific recommendation in regard to sub-rule (3) of Rule 1 of Order 41 proposed to be inserted by original clause 90 of the Bill. In other words, the Committee recommended no change in the form or content of sub-rule (3)which was proposed to be inserted by way of amendment in rule 1 of Order 41. However, the Bill reported by the Committee incorporated a material change in the said subrule which will be presently noticed. The Code of Civil Procedure (Amendment) Bill, 1974 (Bill No. 27-B of 1974) as reported by the joint Committee is found published in the Gazette of India (Extraordinary), Part-ll, Section-2, dated April 1, 1976 at pages 804/35 to 804. At page 804/111, clause 87 finds place and the relevant portions of the said clause are reproduced herein below: "87. In the First Schedule, in Order XLI, (i) rule 1,- (a) xxx xxx xxx xxx xxx xxx (b) after sub-rule (2), the following sub-rules shall be inserted, namely: " (3) 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 thereof as the Court may think fit. " (ii) xxx xxx xxx xxx xxx xxx xxx xxx (Hi) in rule 5, (a) xxx xxx xxx xxx xxx xxx (b) xxx xxx xxx xxx xxx " (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 rule 1, the Court shall not make an order staying the execution of the decree. " (Underlining supplied)The Bill having been considered and passed by both the Houses of parliament was enacted into the Code of Civil procedure (Amendment)Act, 1976 (No. 104 of 1976). The Act received the assent of the President of India on September 9, 1976, and it was published in the Gazette of India (Extraordinary), Part-ll, Section-1, dated September 10, 1976. The material amendments, namely, the insertion of sub-rule (3)in Rule 1 and sub-rule (5) in Rule 5 of Order 41 were duly enacted and stood inserted in the Code of Civil Procedure, 1908 by Section 87 of the Amendment act, which is to be found at page 1337 of the Gazette, and they came into force on and with effect from February 1, 1977. The substance of the Legislative history set out hereinabove is that clause 90 of Bill No. 27 of 1974 stood materially altered as per clause 87 of bill No. 27-B of 1974, as reported by the Joint committee, in the following respects: (1) In sub-rule (3) of rule 1 of Order 41, the provision relating to the requirement of the appellant depositing the amount disputed in the appeal or furnishing such security in respect thereof as the Court may think fit in cases where the appeal is against an order made in execution of a decree for payment of money was substituted by the provision requiring such deposit being made or security being furnished where the appeal is against a decree for payment of money. (2) Sub-rule (1-A) of Rule 3 of Order 41 requiring the court to reject the memorandum of appeal where the appellant fails to make the deposit or furnish security specified in sub-rule (3) of rule, 1 of order 41, was deleted. (3) Sub-rule (5) was added in Rule 5 of Order 41 providing that where the appellant fails to make the deposit or to furnish the security, the Court shall not make an order staying the execution of the decree. (3) Sub-rule (5) was added in Rule 5 of Order 41 providing that where the appellant fails to make the deposit or to furnish the security, the Court shall not make an order staying the execution of the decree. (Underlining supplied)These changes are also found reflected in the Code of Civil Procedure (Amendment) Act, 1978 and they now find place in the parent Act, namely, the Code of Civil Procedure, 1908. " (20.) ULTIMATELY, the Division Bench arrived at the following conclusion : the next question is as to what is the consequence of the negligence or failure, if any, on the part of the appellant to comply with the order of the court made under sub-rule (3) of Rule 1 of Order 41. There is no express provision in sub-rule (3) prescribing any consequence, much less the consequence of nullification of the right of appeal in the event of noncompliance of an order made thereunder. Can such a consequence be regarded as arising by necessary implication from the language of sub-rule (3)? In order to answer this question, it is necessary to ascertain the real intention of the Legislature by not only carefully attending to the language of the enactment and the whole scope of the statute but also by taking into consideration the legislative history. True it is that sub-rule (3) of Rule 1 uses word "shall" and thereby appears to enjoin upon the appellant the duty or impose upon him the obligation to deposit the amount or to furnish security, if so directed by the Court. However, the breach of such duty or obligation cannot be regarded as resulting in nullification of the right of appeal for two apparent reasons; first, an express provision requiring the court to reject the memorandum of appeal where the appellant fails to make the deposit or furnish security, which was sought to be introduced by way of amendment as sub-rule (1a) of Rule 3 of order 41, was deleted on the recommendation of the Joint Committee and, secondly, the law expressly enacts some other consequence by providing in sub-rule (5) of Rule 5 of order 41 that if he fails to make the deposit or furnish the security, notwithstanding anything contained in the foregoing provisions of the said rule, the Court shall not make an order staying the execution of the decree. Under the circumstances, it is not possible to hold that in the event of non-compliance of an order made under sub-rule (3) of Rule 1, the right of appeal itself would stand forfeited and that the memorandum of appeal would, therefore, be liable to be rejected on that ground. The consequence of a direction that the appeal be consigned to the record room on the ground that there is no proper appeal before the Court under such circumstances is, in substance and reality, not different than that which flows out of the rejection of an appeal and, therefore, even such a direction cannot obviously be given for such non-compliance under the relevant provision. This is the view which appears to us to be in consonance with the real intention of the legislature underlying the enactment of sub-rule (3) of Rule 1 of Order 41. Under the circumstances, we concur in the similar opinion expressed in the decisions of some of the other High Courts, which were cited by M/s. D. K. Khanna, Inder Singh and K. D. Sood, and hold that if there is non-compliance of an order made under sub-rule (3) of Rule 1 of order 41 the Court has no power to reject the memorandum of appeal or to direct that the appeal be consigned to the record room under the relevant provisions of the Code of civil Procedure. The cases of Narinder Kumar (ILR 1981) Him Pra 423)and Smt. Gurdev Kaur, (AIR 1983 Him Pra 74)with respect, must be regarded as having been wrongly decided in so far as they hold that the consequence of non-compliance of an order made under sub-rule (3) of rule 1 of Order 41 is to render the appeal as not being in a proper form as required by the Code of Civil Procedure and that, therefore, such appeal could be ordered to be consigned to the record room. The question which still survives for consideration is whether the Court is entirely helpless in a situation where the appellant defies with impunity an order made by the Court as aforesaid, under sub-rule (3) of Rule 1 of order 41, and whether such an appellant can ask the Court as of right, under all circumstances and in all situations, to deal with his appeal on merits. In other words, the question is whether the Court in such a case is entirely helpless and has no power to enforce the order? We do not think such a view can or ought to be taken. If the Court is satisfied on the facts and in the circumstances of the case that the disobedience to the order is wilful the appellant will be guilty of civil contempt within the meaning of the contempt of Courts Act, 1971 and he will be liable to be dealt with under the provisions of the said Act. Besides, such wilful disobedience being to an order made in exercise of a procedural law, the rule that the party in contempt may not be heard till he has purged himself of the contempt comes into, operation. It is settled law that where a party disobeys an order of the court in order to secure obedience to that order, the right of the party to be heard in a proceeding arising out of the same cause will be denied to him, if his disobedience is such that, so long as it continues it impedes the course of justice in the cause and there is no other effective means of securing its compliance (See : Om Parkash v. Board of School Education, ILR (1974) Him Pra 693: AIR 1973 Him Pra 57) (FB). Of course, the bar to hearing in such cases until the impediment is removed is placed under discretionary powers of the Court on considerations of public policy and it may be justifiably applied only on the proof of wilful disobedience and not otherwise. The matter which next remains to be considered is whether the Court has the power to relieve the appellant from the obligation of either depositing the amount disputed in the appeal or furnishing security, as the case may be, in extreme cases. The foregoing discussion would indicate that the provisions of sub-rule (3) of Rule 1 of Order 41 cannot be regarded as mandatory notwithstanding the use of the word "shall". The legislative history, the nature and design of the statute, the purposeful absence in the enactment of a provision which visits its non-compliance with the penalty of nullification of the right of appeal, the impact of a cognate provision which forbids stay being granted in the event of such noncompliance etc. The legislative history, the nature and design of the statute, the purposeful absence in the enactment of a provision which visits its non-compliance with the penalty of nullification of the right of appeal, the impact of a cognate provision which forbids stay being granted in the event of such noncompliance etc. are all factors pointing in the direction of the provision being not mandatory as has been held by the other High Courts in the decisions cited before us. It is one thing to hold, however, that sub-rule (3) of rule 1 is directory and quite a different thing to view it as conferring discretion on the Court to altogether dispense with the requirement of depositing the amount or furnishing security. A provision giving a discretionary power leaves the donee of the power free to use or not to use it at his discretion. A directory provision, however, gives no discretionary power to do or not to do the things directed. A directory 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 v. Amar Krishna Narain Singh, air I960 SC 444). 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 altogether 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 a 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 famishing the security. The plain words of the enactment do not permit such a view being taken. 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 famishing 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 successful litigant so that he can realise the fruits of the decree. It cannot be overlooked, in this connection, that the Judicial Committee of the privy Council was constrained to observe as far back as 1872 that the difficulty of a litigant in india commences when he obtains a decree. The execution of a money decree is known to be more cumbersome than that of other types of decrees. In order to obviate this difficulty, the legislature has made a provision in sub-rule (3) of Rule I for depositing the amount or furnishing, the security, as the case may be, and in sub-rule (5) of Rule 5 that the failure to make the deposit or furnish the security as ordered would result in no order of stay of the execution of the decree under appeal being made. In our opinion, therefore, the Court has no discretion of dispensing altogether with the requirement of depositing the amount disputed in appeal or furnishing security in respect thereof. " (21.) WITH great respect to the learned judges of the said Division bench, we are unable to persuade ourselves to subscribe to the view taken by Their Lordships that the provisions of order XLI Rule 1 (3) Is directory provision for the following reasons. (22.) THE well-settled principles required to be followed by a Court while interpreting a provision of a Statute is that the intention of legislature is primarily to be gathered from the language used, and Consequently, a construction, which results in rejection of words as meaningless, has. to be avoided. It is not a sound principle of construction to brush aside words or phrase in a statute as being inapposite surplusage if they can have appropriate application in circumstances conceivably within the contemplation of the Statute. to be avoided. It is not a sound principle of construction to brush aside words or phrase in a statute as being inapposite surplusage if they can have appropriate application in circumstances conceivably within the contemplation of the Statute. In the interpretation of Statutes, the Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. The Legislature is deemed not to waste its words or to say anything in vain. (See : Mithilesh Singh v. Union of India reported in AIR 2003 SC 1724 ). (23.) SIMILARLY, in the case of Padmasundara Rao v. State of Tamil Nadu and Ors. reported in AIR 2002 SC 1334 , it was held that two principles of construction -one relating to casus omissus and the other in regard to reading the Statute as a whole appear to be well settled. Under the first principle, a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself, but, at the same time, a casus omissus should not be readily inferred and for that purpose, all the parts of a Statute or Section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof, so that the construction to be put on a particular provision makes a consistent enactment of the whole Statute. This would be more so, if literal construction of a particular clause leads to manifestly absurd or anomalous results, which could not have been intended by the Legislature. Therefore, if the language is plain, there is no necessity of taking aid of external aid for gathering the real intention of the legislature. (24.) OVER and above, we should bear in mind the following well-known rule of interpretation of the statute reiterated by the apex Court in the case of union of India and Ors. v. Deoki Nandan Agarwal reported in AIR 1992 SC 96 : "it is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. v. Deoki Nandan Agarwal reported in AIR 1992 SC 96 : "it is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities." (25.) APPLYING the aforesaid principles, if we read the plain language of Order XLI Rule (1) sub-rule (3) of the Code, we get the clear intention of the legislature that deposit of the decretal amount or giving security thereof is not a condition precedent for maintaining a money appeal and Court is vested with discretion to grant time for depositing such amount and giving security before disposal of the appeal and at the same time, the Appellate court has also power to extend the time by taking aid of Section 148 of the code; the use of the word "shall" definitely makes the provision mandatory for an appellant to deposit the amount or give security within the time fixed by the Appellate Court. Merely because, there is no consequence mentioned in the Rules for non-compliance of the requirement, such fact cannot be an indication that the provision should be totally ignored. If no consequence is provided, the law is that, in such circumstances, the Court should not dismiss the appeal straightway without giving an opportunity to comply with the direction. In this connection, we may profitably refer to the following observations of the Supreme Court in the case of Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Anr. If no consequence is provided, the law is that, in such circumstances, the Court should not dismiss the appeal straightway without giving an opportunity to comply with the direction. In this connection, we may profitably refer to the following observations of the Supreme Court in the case of Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Anr. reported in air 2006 SC 269 while dealing with the effect of non-compliance of a procedural provision when no consequence is provided for in the Statute : "non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; hi) where the non-compliance or violation is proved to be deliberate or mischievous; iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the Court ; v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant. " (Emphasis supplied by us) (26.) THEREFORE, for absence of any provision specifically authorising the Court to dismiss an appeal for non-compliance of the provisions contained in Order XLI Rule l (3) of the code, the power of an Appellate court to dismiss the appeal is not in any way curtailed. It may be mentioned here that with effect from July 1, 2002, the provision contained in Order XLI rule 18 has been omitted. However, for such omission, the power of appellate Court to dismiss an appeal for not taking step for service upon the respondents is in no way affected. We, therefore, respectfully disagree with the view that for non-compliance of the requirement of Order XLI Rule 1 (3) of the Code, the appeal cannot be dismissed. However, for such omission, the power of appellate Court to dismiss an appeal for not taking step for service upon the respondents is in no way affected. We, therefore, respectfully disagree with the view that for non-compliance of the requirement of Order XLI Rule 1 (3) of the Code, the appeal cannot be dismissed. If we accept the view taken by the Himachal Pradesh High Court and adopted by the Division bench of this Court as mentioned above, we shall not be able to exercise our power of dismissal of appeal for non-compliance of the order of the lawazima Bench provided in the Appellate Side rules for not taking step for service upon the respondents. We, therefore, hold that the Legislature unnecessarily did not retain the Sub-rule 3 Rule 1 of order XLI in addition to the amended portion of Rule 5 and to give effect to the view taken by the himachal Pradesh High Court would result in totally ignoring the very existence of Sub-rule 3 of Rule 1, which cannot be the intention of the Legislature. (27.) SINCE, the view we propose to take is in direct conflict with the one taken by the Division Bench of this Court in the case of Union of India v. M/s. Burama Construction (supra), we refer this matter to the Honble chief Justice for constitution of a Larger Bench for the purpose of deciding the following questions of law. (a) In an appeal preferred by a Government, whether the government is entitled to get stay of execution of the decree impugned by taking aid of Order 27 rule 8a of the Code, even if, the conditions mentioned in Clauses (a) and (b) of sub rule 3 of Rule 5 of Order XLI are not complied with? (b) Whether a money appeal preferred by the Government can be disposed of on merit though till the time of hearing of the appeal, the Government has neither deposited the decretal amount nor has it given security thereof in terms of sub-rule 3 of Rule 1 of Order XLI of the Code? (c) Whether for non-compliance of the requirement of Order XLI rule 1 (3) of the Code, an appeal can be dismissed? (c) Whether for non-compliance of the requirement of Order XLI rule 1 (3) of the Code, an appeal can be dismissed? (28.) WE, however, pass an ad interim order restraining the respondent from executing the decree for a period of three months from today with liberty to apply for extension of this order after giving notice to the learned advocate for the respondents if the reference is not disposed of within the said period. Let the matter be placed before the Honble Chief Justice for appropriate order. Banerjee, J. I agree.