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Madhya Pradesh High Court · body

2018 DIGILAW 692 (MP)

Ashok Lalwani v. State Bank of India

2018-08-09

VANDANA KASREKAR

body2018
ORDER : The petitioner has filed the present petition, under Article 227 of the Constitution of India, challenging the order dated 15.05.2017 passed by First Appellate Court thereby dismissing the application preferred by the petitioner for vacating the ex-parte order. 2. Brief facts of the case are that the petitioner preferred a suit for eviction and mense profit which was decreed by the trial Court. Against the said judgment and decree, the respondent after vacating the suit premises has preferred an appeal to challenge the decree for mense profit. Along with the said appeal, the respondent has filed an application under Order 41 Rule 5 of the C.P.C. The First Appellate Court allowed the said application. The petitioner has challenge the said ex-parte order by filing a writ petition No. 2029/2017, but the same was withdrawn to pursue the application for vacating the order of stay of execution. The First Appellate Court has dismissed the said application for vacating the stay order passed under Order 41 Rule 5 of the C.P.C vide order dated 15.05.2017 on the ground that the Bank has given an undertaking to comply with the decree in the event of dismissal of their appeal. Being aggrieved by that order, the petitioner has filed the present petition. 3. Learned counsel appearing on behalf of the petitioner argues that the order passed by the Appellate Court is in contravention of the provisions of Order 41 Rule 5 of the C.P.C. The First Appellate Court has further failed to see that a money decree cannot be stayed unless some amount is deposited by the respondent. He further submits that the respondent/Bank has no scarcity of funds whereas, the petitioner will suffer irreparable loss if the decreetal amount has not been deposited by the respondent/Bank. He further relied on the judgment passed by the Nagpur High Court in the case of Anandi Prashad Vs. Govinda Bapu, reported in AIR 1934 Nagpur 160 as well as the judgment passed by the Andhra High Court in the case of Pamulapati Varadayya Vs. Kommareddi Chinnappareddi and another, reported in AIR 1956 Andhra 64. 4. On the other hand learned counsel for the respondent supports the order passed by the trial Court and submits that the trial Court has not committed any error in dismissing the application preferred by the respondent for vacating the stay. Kommareddi Chinnappareddi and another, reported in AIR 1956 Andhra 64. 4. On the other hand learned counsel for the respondent supports the order passed by the trial Court and submits that the trial Court has not committed any error in dismissing the application preferred by the respondent for vacating the stay. He further relied on the judgment passed by the Apex Court in the case of M/s Mehta Teja Singh and Company Vs. Grindlays Bank Limited, reported in (1982) 3 SCC 199 . 5. Heard learned counsel for the parties the perused the record. 6. The Order 41 of the C.P.C. provides for the appeals from original decrees and Rule 5 deals with the stay by appellate Court. Sub Rule 3, 4 & 5 of Rule 5 reads as under:- “Order 41 Rule 5-(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 parte 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.]” As per the Sub Rule 3 of Rule 5, the appellate Court shall not stay the judgment and decree passed by the Lower Court unless applicant has furnished the security for the due performance of such decree or order as may ultimately be binding upon him. 7. Sub Rule 5 of Rule 5 submits that if the appellant fails to make the deposit or furnish the security as specified in sub-rule (3) of Rule 1, the Court shall not make an order staying the execution of the decree. 8. 7. Sub Rule 5 of Rule 5 submits that if the appellant fails to make the deposit or furnish the security as specified in sub-rule (3) of Rule 1, the Court shall not make an order staying the execution of the decree. 8. As per the said sub rule, the decree if it is a money decree that cannot be stayed without directing the judgment debtor to deposit 50% of the amount or furnish the security of the like amount. 9. In the present case, the petitioner filed a suit for eviction and the said suit was decreed in favour of the petitioner vide judgment and decree dated 09.12.2015. While decreeing the suit, the Court has also awarded the mense profit in favour of the petitioner. After passing of the judgment and decree, the respondent/Bank has vacated the premises. So far as, mense profit is concerned, they preferred an appeal before the First Appellate Court along with an application under Order 41 Rule 5 of the C.P.C. The First Appellate Court has passed an ex-parte order staying the execution of the said judgment and decree. As the said order was passed ex-parte, therefore, the petitioner has filed an application for vacating the stay on the ground that the respondent has not deposited any amount or furnish the security as required under Order 41 Rule 5 (3) of the C.P.C. The First Appellate Court vide impugned order has rejected the said application on the ground that the Bank is a financial institution and they have sufficient security for recovering the amount. 10. The Andra High Court in the case of Pamulapati Varadyya (supra) in para 5 has held as under:- “5. If so, the next question is whether this is a fit case for staying execution of the decree. It is an established rule of practice that ordinarily stay of money decrees will not be given unless there are special circumstances. In this case, the appellant is only a surety and the primary liability rests upon defendant 1. In the circumstances, we think the ends of justice would be met if the appellant is directed to deposit half the decree amount and costs within two months from this date. Respondent 1 may draw out the amount so deposited and the attachment already effected would continue. In the circumstances, we think the ends of justice would be met if the appellant is directed to deposit half the decree amount and costs within two months from this date. Respondent 1 may draw out the amount so deposited and the attachment already effected would continue. The appellant may, if he chooses, apply to the lower court under O. 21 R. 83 for appropriate directions. There will be no order as to costs.” As per the said judgment ordinarily a money decree cannot be stayed unless there are special circumstances. 11. In the present case also, while passing the order, the First Appellate Court has not given any special circumstances for staying the judgment and decree. 12. Similar view was taken by the Nagpur High Court in the case of Anandi Prashad (supra) has held as under:- “It is argued that O. 41 R. 5 does not empower the Court to impose terms. That is perfectly true, but equally it expressly prohibits stay except in the circumstances mentioned in sub-Ci. (3), none of which exists here; and when a Court acts in contravention of a statutory prohibition, it acts without jurisdiction.” As per this judgment also the judgment and decree passed by the Court below cannot be stayed without any condition. 13. In the present case also, no such conditions have been imposed by the First Appellate Court while staying the execution of the judgment and decree regarding the mense profit is concerned. The Apex Court in the case of M/s Mehta Teja Singh and Company (supra) has held that the High Court should have granted stay of a money decree, and that too, by requiring the appellant before it Grindlays Bank Limited to deposit only a part of the decreetal amount and the Apex Court has directed the respondent to deposit the entire amount in the High Court within a period of four weeks. Thus, in this judgment, the respondent is also a Bank in spite of that the Court has directed the Bank to deposit the amount before staying the execution of the judgment and decree. 14. Learned counsel for the respondent relied on the judgment passed by the Apex Court in the case of Sihor Nagar Palika Bureau Vs. Bhabhlubhai Virabhai & Co., reported in (2005) 4 SCC 1 . 14. Learned counsel for the respondent relied on the judgment passed by the Apex Court in the case of Sihor Nagar Palika Bureau Vs. Bhabhlubhai Virabhai & Co., reported in (2005) 4 SCC 1 . Relying on this judgment, learned counsel for the respondent submits that furnishing of security instead of depositing of decree amount in the Court in case of money decree, the discretion is lie with the Appellate Court to direct either, as it may think fit. Thus relying on this judgment, he submits that it is the discretion of the Appellate Court to permit the respondent/Bank either to furnish the security or to deposit the amount. But in the present case, no such discretion has been exercised by the First Appellate Court and undertaking has been given. Thus, the First Appellate Court has erred in exercising the jurisdiction vested in it. 15. Accordingly, this miscellaneous petition is allowed. The impugned order dated 15.05.2017 is hereby set aside and the application preferred by the petitioner for vacating the interim order is allowed. The petitioner/decree holder is permitted to withdraw the amount deposited by the respondent subject to furnishing the surety before withdrawing the amount.