JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri B.N. Agrawal assisted by Sri Sanjay Agrawal, learned counsel for the petitioners and Sri Choudhary Subhash Kumar, learned Standing Counsel appearing for the contesting respondents. 2. Learned counsel for both the parties are agreed that this writ petition may be decided finally without any further exchange of affidavits at this stage. Therefore, the writ petition is taken up for final disposal. 3. Through this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the order dated 31.5.2013 passed by the In-charge, District and Sessions Judge, Jalaun, by which the petitioners’ application for interim protection in appeal No. 43/2013 (Pawan Singh and another v. Rameshwar Prasad) has been rejected for non-compliance of sub-rules (3) and (5) of Rule 5 of Order 41 of the Code of Civil Procedure, 1908 (in short, ‘CPC’). It appears, a suit was filed against the petitioner by the respondents for demolition, delivery of possession and payment of damages. The suit was decreed on 10.5.2013 with the direction to the petitioners to hand over the possession to the plaintiff and also pay Rs. 10 per day towards damages from the date of institution of suit till the date of delivery of the possession. Learned In-charge, District and Sessions Judge has although admitted the appeal, but rejected the petitioners’ application praying stay of the execution of the decree on the ground that sub-rules (3) and (5) of Rule 5 of Order 41 of the CPC have not been followed. For appreciating the controversy, it would be necessary to see the language used in sub-rules (3) and (5) of Rule 5 of Order 41 of the CPC, which are reproduced hereinunder: “(3). No order of 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 © that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (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.” It appears, in the year 1994, an amendment was made in sub-rule (5) of Rule 5 of Order 41 of the CPC which is reproduced hereinunder: “(5). Notwithstanding anything contained in the foregoing sub-rules where the appeal is against a decree for payment of money, the Appellate Court shall not make an order staying the execution of the decree, unless 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 Appellate Court may think fit.” 4. The submission of Sri Agrawal is that the provision upon which reliance has been placed by the learned Judge would not be attracted here in this case as that is only applicable in a case of money decree and it is not a case of simply money decree, but it is a case of demolition of construction, delivery of possession as well as payment of damages, etc. He has also submitted that in view of Allahabad High Court’s amendment in sub-rule (5) of Rule 5 of Order 41 of the CPC, it would be clear that unless Court passes some order and grant time to deposit the decretal amount or furnish security, it is not the condition precedent for the appellant/applicant to file an application seeking permission of the Court to deposit the security or decretal amount prior to filing of the stay application or at the time of filing of the application. In the submission of Sri Agrawal, the learned Judge, while rejecting the petitioner’s application has misconstrued and mis-interpreted the provisions contained in sub-rules (3) and (5) of Rule 5 of Order 41 of the CPC. 5. Learned counsel for the respondent submitted that it is condition precedent, before filing an application seeking stay of the execution of decree, to deposit the decretal amount or to furnish the security. In support of his submissions, learned counsel for the respondent has placed reliance upon the judgment of the Apex Court in M/s Malwa Strips Pvt. Ltd. v. M/s Tyagi Ltd., AIR 2009 SC 1581 . 6. In support of his submissions, learned counsel for the respondent has placed reliance upon the judgment of the Apex Court in M/s Malwa Strips Pvt. Ltd. v. M/s Tyagi Ltd., AIR 2009 SC 1581 . 6. I have considered the submissions of learned counsel for the parties and perused the records of the writ petition. 7. I find that it is not in dispute that the respondent has filed suit against the petitioner for demolition, delivery of possession and payment of damages for use and occupation of the disputed premises. The said suit was decreed on 10.5.2013 with the direction to the petitioner to demolish the construction shown by the words, “Ta, Tha and Ga” in the plaint and hand over the possession of the land shown by the words, “Pa, Fa, Gha and Ga” within a period of three months and also pay the damages at the rate of Rs. 10/- per day from the date of institution of the suit to the date of actual delivery of possession. 8. The petitioner filed appeal and alongwith the appeal, he has also filed an application for staying the execution of the decree on 31.5.2013. The appeal was admitted on 31.5.2013. To the stay application, the plaintiff - respondent filed an objection on the same day stating that the application should be rejected as the appellant-applicant had not deposited the decretal amount. Learned In-charge District and Sessions Judge rejected the application of the petitioner on the ground that the petitioner has neither complied with the provisions contained under sub-rule (3)© of Rule 5 nor complied with the provisions contained under sub-rule (5) of Rule 5 of the CPC by making deposit or furnish security. 9. Sri Agrawal has submitted that although the learned Judge has taken note of the High Court amendment in sub-rule (5) of Rule 5 of Order 41 of the CPC but has misconstrued the same while rejecting the stay application of the petitioner. In his submissions, the suit was not filed for only recovery of money, but it was a case for demolition, delivery of possession and payment of damages. In his submissions, the suit was not filed for only recovery of money, but it was a case for demolition, delivery of possession and payment of damages. Further, in view of the amendment of the High Court in sub-rule (5), unless any order was passed by the Court, granting time to the petitioner - appellant either to deposit the money by the date fixed or furnish security by that date, the application of the petitioner for interim protection could not be rejected and learned Judge has erred in rejecting the same, whereas Sri Chaudhary has submitted that it is condition precedent, for entertaining the application for stay of a money decree, to deposit decretal amount or furnish security or to file an application for giving undertaking to comply with the direction of the Court. 10. From the bare reading of sub-rule (3)© of Rule 5, it would transpire that no order of stay of execution shall be made unless security has been given by the applicant for due performance of such decree or order as may ultimately be binding upon the appellant, whereas as per sub-rule (5), in the event of failure to make deposit or furnish security, specified in sub-rule (3) of Rule 1, the Court shall not make an order staying the execution of decree. Sub-rule (3) of Rule 1 of Order 41 of CPC reads as under: “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.” 11. From the conjoint reading of the aforesaid Rules, it would transpire that it is obligatory upon the appellant to furnish a security as required under sub-rule (3)© of Rule 5 of the CPC for obtaining a stay of execution of money decree with the further rider contained in sub-rule (5) that on the failure of such deposit or furnishing security specified in sub-rule (3) of Rule 1 of the CPC, the Court shall not pass an order staying the execution of decree. Sub-rule (5) takes note of provisions contained under sub-rule (3) of Rule 1 of the CPC also, whereas sub-rule (3)© only talks about the security for due performance of decree. 12. Sub-rule (5) takes note of provisions contained under sub-rule (3) of Rule 1 of the CPC also, whereas sub-rule (3)© only talks about the security for due performance of decree. 12. It appears, for removing the shadow of doubts, when to furnish security or deposit decretal amount, an amendment was made in sub-rule (5) clarifying as upto which time the security or required amount is to be deposited by introducing the words, “the appellate Court shall not make an order staying the execution of decree, unless the appellant shall, with such time as appellate Court may allow, deposit the amount disputed in appeal or furnish such security in respect thereof as the appellate Court may think fit.” Meaning thereby, the time to deposit the decretal amount or furnishing security has been left to the discretion of the appellate Court. The object of amendment in sub-rule (5) appears to be very clear, i.e., to secure the decretal amount either by directing the appellant to deposit decretal amount or furnish security in a case of money decree before granting an interim order staying execution decree. It would further appear that prior to the amendment the Courts have been interpreting the language used in sub-rule (3) © and sub-rule (5) of Rule 5 of the CPC, treating it to be condition precedent for filing the application seeking stay of execution of decree or to the extent of consideration of the stay application but by the High Court amendment, in my opinion, the things have been clarified and the power to grant stay has been left to discretion of the appellate Court considering the stay application with the requirement to secure the amount of money decree, either by directing the party to deposit the entire decretal amount or to furnish security for due performance of the said decree. Needless to say that the discretion is to be exercised in judicial manner. Needless to say that the discretion is to be exercised in judicial manner. Here in the present case, the learned Judge has rejected the stay application on the date of its filing without applying his mind and exercising his discretion to the extent as to whether this is a case of a simple money decree or the payment of money is dependent upon the satisfaction of some other requirements and passed the order totally in derogation of the High Court amendment, which provides that if the appellant-applicant fails either to deposit the amount directed by the Court or to furnish the security, the decree cannot be stayed. Here the words, ‘appellate Court’ has been used and payment of money or furnishing security is on the discretion of the appellant Court coupled with the time limit fixed by it. 13. I am also of the view that the question of deposit or to furnish security would only be seen where after applying its mind, the appellate Court comes to the conclusion that it is a case for grant of interim protection, but in view of the rigour of sub-rule (3)© and sub-rule (5) of Rule 5 of Order 41 of CPC, without deposit of decretal amount or without furnishing the security for due performance of decree, the interim protection normally cannot be granted. In that eventuality, the appellant Court, on its own discretion, is required to grant sometime either to deposit the entire decreetal amount or to furnish security for the same or, alternatively, direct to deposit some amount and for remaining amount ask the appellant to furnish security. Although the appellate Court is not powerless to grant stay in absence of such deposit or furnishing security while exercising its discretionary power, but that there must be sound reasons which is required to be recorded in the stay order. 14. Here in this case, at the time of consideration of the application, the appellate Court has failed to exercise its discretion vested in it by not granting sometime to the petitioner either to furnish the security or to deposit the decretal amount. Had the appellate Court fixed sometime limit, either to deposit decretal amount or to furnish the security and appellant would have failed in complying with the order, in that eventuality there was justification to reject the stay application, but this is not the case here. 15. Had the appellate Court fixed sometime limit, either to deposit decretal amount or to furnish the security and appellant would have failed in complying with the order, in that eventuality there was justification to reject the stay application, but this is not the case here. 15. Otherwise also, this is not a case of simple money decree. The suit was instituted for demolition, delivery of possession and payment of damages. Payment of damages was dependent, if the possession of the appellant was found to be illegal and unauthorised. Therefore, the lis was not only of payment of money and it was not a simple case of money decree. 16. Sri Choudhary Subhash Kumar, learned counsel for the respondent has placed reliance upon the judgment of Apex Court in M/s Malwa Strips Pvt. Ltd. (supra). The facts of that case was entirely different from the facts of this case. In that case, suit was filed under Order 37 of the CPC and the right of defence was made available by Court’s order to the other side on deposit of undisputed amount for the reasons that only rate of interest was disputed and not the principal amount. The other side has also sought further time to deposit, but failed to deposit the same and ultimately, the suit was decreed. Appeal was filed before the High Court and the High Court, without directing to furnish security or deposit the decretal amount, granted an interim protection. There, the Apex Court set aside the interim order granted by the High Court by observing that the High Court has erred in granting the interim protection without directing the appellant to deposit the amount as directed by the Court below for defending the suit without recording any special reasons, although Hon’ble Apex Court observed that in special circumstance, after recording the reasons, Court can grant stay even without deposit of decretal amount or furnishing security. Whereas in the present case, the application for interim protection has been rejected in limine without granting any time to the applicant either to deposit the decretal amount or to furnish the security. 17. The Apex Court, while dealing with the grant of interim protection regarding money decree in Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai & Co., 2005 (4) SCC 1 , has observed as under: “6. 17. The Apex Court, while dealing with the grant of interim protection regarding money decree in Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai & Co., 2005 (4) SCC 1 , has observed as under: “6. Order XLI Rule 1(3) of the CPC provides that in an appeal against a decree for payment of amount the appellant shall, within the time permitted by the Appellate Court, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. Under Order XLI Rule 5(5) a deposit or security, as abovesaid, is a condition precedent for an order by the Appellate Court staying the execution of the decree. A bare reading of the two provisions referred to hereinabove, shows a discretion having been conferred on the Appellate Court to direct either deposit of the amount disputed in the appeal or to permit such security in respect thereof being furnished as the Appellate Court may think fit. Needless to say that the discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a given case. Ordinarily, execution of a money decree is not stayed inasmuch as satisfaction of money decree does not amount to irreparable injury and in the event of the appeal being allowed, the remedy of restitution is always available to the successful party. Still the power is there, of course, a discretionary power and is meant to be exercised in appropriate case.” 18. To the same effect is the decision of the Apex Court in B.P. Agarwal and another v. Dhanalakshmi Bank Ltd. and others, 2008 (3) SCC 397 , which reads as under: “The High Court in this case failed to notice the provisions of sub-rule (3) of Rule 1 of Order XLI. The appellate Court, indisputably, has the discretion to direct deposit of such amount, as it may think fit, although the decretal amount has not been deposited in its entirety by the judgment debtor at the time of filing of the appeal. But, while granting stay of the execution of the decree, it must take into consideration of the facts and circumstances of the case before it. It is not to act arbitrarily either way. If a stay is granted, sufficient cause must be shown, which means that the materials on record were required to be perused and reasons are to be assigned. It is not to act arbitrarily either way. If a stay is granted, sufficient cause must be shown, which means that the materials on record were required to be perused and reasons are to be assigned. Such reasons should be cogent and adequate.” 19. The matter may be examined from another angle also. The Apex Court in State of Bihar and others v. Kameshwar Prasad Singh and others, JT 2000 (5) 389, has held that the Courts are meant and known for imparting substantial justice to the parties and not to scuttle the process of justice on technicalities. Merely non-filing of an application, praying the Court that the applicant-appellant shall abide by the order passed by the Court will not cease the discretion of the appellate Court to grant stay, of course, the stay ordinarily cannot be granted in the event the appellant fails to deposit the decretal amount or furnish security upto the time limit fixed by the Court. Here that stage has not yet come. The Apex Court in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, JT 1987 (1) SC 537, has held that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. In State of U.P. v. Mohd. Nooh, AIR 1958 SC 86 , the Apex Court has observed that justice should be administered in our Courts in common sense, liberal way and be board based on human values rather than on narrow and restricted considerations hedged round with hair splitting technicalities. 20. In view of the foregoing discussions, I am of the considered opinion that the appellate Court has erred in rejecting the stay application of the petitioner. The writ petition succeeds and is allowed. The impugned order dated 31.5.2013 passed by the In-charge, District and Sessions Judge, Jalaun in appeal No. 43/2013 (Pawan Singh and another v. Rameshwar Prasad) is hereby quashed. 21. The appellate Court is directed to re-consider the petitioner’s stay application, subject to its own satisfaction, by directing the applicant-appellant either to deposit the entire amount or to furnish security, as the case may be, in the event it comes to the conclusion that it is a case for granting stay of execution of decree.