JUDGMENT : Shri J. B. Mehta, learned counsel for the appellant, Shri S. L. Aaiwasi, learned counsel for the respondent. 2. On 22-3-2012 the matter came up for consideration and orders on I. A. No. 4622/2011 filed by the appellant to stay the execution of the decree. An objection was raised by the other side that the appeal itself was incompetent and not maintainable because of non-compliance of Order XLI, Rule 1(3) of the Civil Procedure Code (wrongly typed as Order XLIII, Rule 1(3) in the order dated 22-3-2012). On the said date, case was adjourned to examine the legal position in view of the objection raised by counsel for the respondent. 3. Appellant has suffered a money decree. He filed an application under Order XLIV to prosecute the appeal against said decree as an indigent person. That application was registered as M.C.C. No. 390/2010. After hearing the other side, that M.C.C. was allowed and permission was granted to appellant to prosecute this appeal as an indigent person. That is how this appeal has been registered as F. A. No. 132/2011. 4. Learned counsel for the respondent making reference to the provisions contained in Order XLI, Rule 1(3) of the Civil Procedure Code submitted that it is mandatory for appellant to deposit the amount disputed in appeal or furnish security in respect thereof and if it is not done, appeal itself is incompetent. 5. On the other hand, Shri Mehta submitted that making of deposit or furnishing of security is not a condition precedent for the maintainability of first appeal against a decree for payment of money. He, therefore, contends that appeal is maintainable and the appellant who was permitted to sue as an indigent person does not possess sufficient means, cannot be shut out from seeking justice on this technical ground. 6. Perusal of Order XLI, Rule 1(2) of the Civil Procedure Code shows that sub-rule (3) was inserted w.e.f. 1-2-1977 by the Act No. 104 of 1976. This provision clearly shows that it is not mandatory requirement of law for maintaining the appeal or deciding the appeal on merits. This provision will have relevance at the time of considering the stay application. 7. The point came up for consideration in a decision reported in AIR 1983 Bombay 301. This provision clearly shows that it is not mandatory requirement of law for maintaining the appeal or deciding the appeal on merits. This provision will have relevance at the time of considering the stay application. 7. The point came up for consideration in a decision reported in AIR 1983 Bombay 301. After tracing the legislative history of the amendment, it was held that "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." 8. The next decision reported in AIR 1983 A. P. 277 is of the Division Bench. It was held that "The language of O. 41, R. 1(3) and R. 5(5) does not indicate that in an appeal against a money decree before an application for stay of execution of decree is made, the decretal amount should be deposited or security must be tendered." Hon'ble Division Bench also found that it was not a mandatory condition even for maintaining the stay application. However, that would have a relevance at the time of considering the stay application on merit. 9. We may also refer to a decision reported in AIR 1979 Delhi 36 holding that deposit of amount decreed under a money decree is not a condition precedent for valid presentation of appeal against the decree. It was further held that so long as decretal amount is not deposited or security is not furnished, the Court may refuse to staying the execution of decree. 10. There is an illuminating judgment of Allahabad High Court reported in AIR 1994 Allahabad 66, wherein it has been held that "Rule 1(3) of Order 41, Civil Procedure Code has relevance at the stage when the Court is making an order staying the execution of the decree and it has no bearing at all on the competency of the appeal, itself. The non-compliance of Order XLI, Rule 1(3) of the Civil Procedure Code would not render the appeal incompetent nor would debar the Court from proceeding to hear the appeal on merit. The deposit of the amount disputed in appeal is not a condition precedent for the maintainability of the appeal and the appeal cannot be held to be incompetent." 11. The non-compliance of Order XLI, Rule 1(3) of the Civil Procedure Code would not render the appeal incompetent nor would debar the Court from proceeding to hear the appeal on merit. The deposit of the amount disputed in appeal is not a condition precedent for the maintainability of the appeal and the appeal cannot be held to be incompetent." 11. Same is the view of Rajasthan High Court reported in AIR 1999 Rajasthan 264 and lastly, Hon'ble the Division Bench of Calcutta High Court in its decision reported in AIR 2004 Calcutta 174 has also taken the same view. 12. In view of the interpretation put forth on Order XLI, Rule 1(3) of the Civil Procedure Code, I don't find any force in the submission of learned counsel for the respondent that making of deposit of the disputed amount or giving of security is a condition precedent for maintaining the appeal. Even, without deposit or offering the security, appeal itself is maintainable and cannot be thrown out at the threshold as no such consequence is provided in the law. However, that does not mean that failure to deposit or to offer security would have no bearing at all. It will have a vital bearing when the question of stay arises against a money decree. 13. In view of the aforesaid, I overrule the objection of respondent and hold that provisions of Order XLI, Rule 1(3) of the Civil Procedure Code are not mandatory for the maintainability of the appeal. 14. Also heard on I. A. No. 4622/2011 for stay. 15. As per written statement filed by appellant, he had borrowed a sum of Rs. 50,000/- and sum of Rs. 5,000/- on two different occasions in March, 2003. In view of the clear admission of this fact in the written statement, in case, appellant deposits a sum of Rs. 55,000/- (Fifty Five Thousand) with the trial Court within a period of four weeks from today, the execution of the money decree shall remain stayed during pendency of appeal. In the event of non-compliance of the order, the stay application would automatically stand rejected without reference to the Court. C. C. on payment of usual charges. Order accordingly.